Opinion
(22 December, 1900.)
1. FORMER ADJUDICATION — Judgment — Two Causes of Action — Will — Specific Performance.
A judgment that a party can not recover a sum set aside in a will for the erection of a fence, is no bar to an action against the executor for the specific performance of the provision to build such fence.
2. PARTIES — Trustees — Executor — Fence — Cemetery.
Where a testator provides for building a fence around a certain chapel cemetery, the trustees of the chapel are the proper parties to require the executor to perform this provision.
ACTION by J. L. Cabe, J. P. Brown, and others, trustees of Clark's Chapel and Cemetery, against A. J. Vanhook, executor of T. C. Vanhook, heard by Judge Thos. A. McNeill, at Spring Term, 1900, of MACON. From judgment for defendant, the plaintiffs appealed.
J. F. Ray, for the plaintiffs.
Jones Johnston, and Shepherd Busbee, for the defendant.
The defendant's testator, in the second clause of his will, provided: "I set apart five hundred ($500) dollars, or so much thereof as may be necessary, to build a good rock fence around the Clark's Chapel graveyard, or cemetery; said fence to be two feet at the base and one foot at top, three and a half feet high, and no top rock shall be shorter than 24 inches, and 12 inches wide." With the exception of $100, the testator left the residue of his estate to his brother, the defendant, who was also appointed executor. In 1896 the trustees of said Clark's Chapel brought an action against the defendant to recover the $500, to be expended by them in putting up the wall provided for in the will. The defendant demurred (425) on the ground that the will did not devise said sum, or any other amount, to the trustees of Clark's Chapel, and that they were not entitled to recover. At Fall Term, 1897, the demurrer was sustained, and judgment rendered against the plaintiffs that "they take nothing by their action," and that the defendant recover costs. Immediately thereafter the plaintiff began this action against the defendant, alleging, among other things, besides the clause of the will and other matter stated in the first section, that several thousand dollars over and above the debts and liabilities of the estate had come into the hands of the defendant, and that he had refused either to turn the $500 over to the trustees of the church to build the fence prescribed in the second clause, or to build the same himself, though he had often been requested so to do, and that the defendant had time and again declared that he intended to put the $500 in his own pocket (he being the residuary legatee), and that no fence should be built with the funds of the testator set apart in the will for that purpose, and praying judgment either that defendant turn over to them sufficient funds to build said wall, or that the Court decree specific performance, by requiring the defendant to erect, or cause to be erected, the wall as prescribed and directed by the second clause of the will. The defendant answered, and, among other things, set up as a defense the pleadings in the former action, and the judgment as aforesaid upon the demurrer, rendered at Fall Term, 1897. His Honor sustained the plea of res judicata, and held that this action was barred by said judgment. In this there was error. It is true, the plaintiffs and defendant are the same, and the subject matter (the devise for the erection of a wall around the graveyard) is the same. But the cause of action is different. The former action was for the recovery of $500, to be expended by the plaintiffs. (426) The present cause of action is for specific performance of that clause of the will by the executor; there being an allegation of sufficient assets in the hands of defendant, and of refusal by him to erect the wall, and of declarations by him that he intended to divert the $500 devised for the erection of the wall to his own uses. These are distinct causes of action, and, if they had both been stated in the complaint in the former action, a demurrer might have been sustained as to one and overruled as to the other. It follows that, when those two causes of action are set up in different actions, a judgment in one case is not res judicata as to the other. This cause of action was not raised or determined, and could not have been determined, upon the complaint filed and demurrer thereto in the former action. Tyler v. Capeheart, 125 N.C. 64; Glenn v. Wray, 126 N.C. 730.
We are also of opinion that the plaintiffs, as trustees of Clark's Chapel, upon whose grounds the will directed the wall to be built, are the proper parties-plaintiff in an action to require the executor to perform this provision of the will. Edwards v. Supervisors (ante 62). The judgment is therefore set aside.
Error.
Cited: Shakespeare v. Land Co., 144 N.C. 521.
(427)