Iredell County NcArchives Court.....Ola Benton, T. M. Clark V. 1899
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Source: N C Reports
Written: 1899

T. M. Clark v. Ola A. Benton, by guardian, and Catherine E. Benton

(Decided March 21, 1899)

Where, by the will of their father, two children, in esse, were to take upon a 
contingency, which failed to occur, a posthumous child, who was to share 
equally with them, will be precluded also.

Petition for Partition of land transferred from the Clerk of Superior Curt of 
Iredell County and heard at May Term, 1898, by McIver, J.

This case, like the preceeding on, involved the construction of the will of 
Alexander Clark. His Honor decided that Catherine E. Benton was sole owner. 
The plaintiff excepted and appealed.

The opinion states the circumstances of the case.

Messrs. Armfield & Turner and L. C. Caldwell, for appellant
Mr. J. B. Connnelly, for appelee

NC Supreme Court Justice Clark, J. - This is also a petition for partition and 
involves the construction of the third item of the will of Alexander Clark, 
deceased, but the parties are diffenent from the preceeding case, in that 
herein T. M. Clark alone is plaintiff, and Ola A. Benton (with her guardian) 
and Catherine E. Benton are defendants.

Item 3 is as follows: "I will and bequeath unto my son Alexander Clark, as 
trustee, and in trust to the use of my two daughters Catherine E. and Margaret 
A., equally, the lower end of my land, as follows: Beginning at the river bank 
(here follow the boundaries), said land to be equally divided when Catherine 
becomes of age and she receives her part, and in case either should die before 
coming of age, then the other is to receive her part; and in case both should 
die before coming of age, then said land to go to my two daughters Minnie E. 
and Alice R., and in case my wife should be in a family way at present, and 
have a living child, then it to receive its proportionable part of the above 
lands."

It was admitted that Alexander Clark died in the month of August, 1869, and 
that Troy M. Clark was twenty-six years of age at the commencement of this 
action and is the posthumous son of Alexander Clark, the testator, and that he 
was born in a few months after the death of the testator and that he is the 
person mentioned in the third paragraph of the will.

It was admitted that Margaret A. Clark died before she was twenty-one years 
old and without issue.

It was admitted that Catherine E. Clark is now the wife of W. O. Benton and is 
living.

It was admitted that Alice R. Clark died, leaving the defendant Ola Benton as 
her only child and heir-at-law, and that the said Alice R. Clark was the first 
wife of W. O. Benton.

It was admitted by the parties that Minnie Clark is still living.

It was admitted that the land described in the third paragraph of the will and 
in the petition is the land sought to be partitioned.

It was in evidence that the rents of said land were received by Margaret and 
Catherine till the death of the former, and since then Catherine had received 
the rents till the trial.

The plaintiff claimed to be the owner of one-half interest in the land 
embraced in Item 3 above set out, as tenant in common with Ola Benton, who 
answered, claiming sole seisin in herself; and Catherine E. Benton, having 
been made a party defendant, filed an answer setting up sole seisin and 
ownership for herself. Upon issues submitted as to the interest of each of the 
respective parties, the Court instructed the jury that upon the above 
admissions they should find that Catherine E. Benton was sole owner. The 
plaintiff, Troy M. Clark, excepted. The instruction of his Honor was certainly 
correct in excluding Ola Benton from any interest in said land. 

This Item 3 gives the land jointly to Margaret and Catherine, to be equally 
divided when Catherine become of age, and adds, "in case either should die 
before coming of age, then the other is to receive her part." It being 
admitted that Margaret died before she was twenty-one years old, then the 
whole vested in Catherine, who is living and of full age, and the contingency, 
upon which any interest could devolve upon Alice, through whom her daughter 
Ola Benton claims, has failed. The sole question admitting of debate is, 
whether Troy M. Clark has any interest in said land. We think not, for the 
devise is, first to Catherine and Margaret, second, if either die before 
becoming of age then the whole to the survivor, and third, if both died before 
coming of age then to Minnie and Alice, and then in that event there is 
added, "and in case" there is a posthumous child, it is to have its 
proportionable part. Taking the second and fourth items of the will, as set 
out in the preceding case, it seems to have been the intent of the testator 
(which we are seeking for and wish to effectuate) to give the posthumous child 
an equal share with Minnie and Alice in the property given in the fourth 
clause, an equal share in the property in the second item which might devolve 
upon them by death without issue of Mary, and now in like manner an equal 
share with Minnie and Alice should the property given in the third item 
devolve upon them by the contingency of the death of both Catherine and 
Margaret before coming of age.

The plaintiff's contention would destroy that equality between him and Minnie 
and Alice, by giving him one-half of the tract in Item 3, wherein they get 
nothing, and if both Margaret and Catherine had died before coming of age, 
would have cast the whole upon him, thereby defeating entirely the devise over 
to Minnie and Alice.

We think his Honor correctly held that the participation of the plaintiff was 
contingent, as in regard to the property in the second item, upon its 
devolving upon Minnie and Alice.

Affirmed.

Additional Comments:
In the NC Supreme Court February Term 1899

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