Oabe v. Vanhook

• Decision Date: 22 December 1900
• Citation: 37 S.E. 464,127 N.C. 424
• Court: North Carolina Supreme Court
• Parties: OABE et al. v. VANHOOK.

127 N.C. 424

37 S.E. 464

OABE et al.

v.VANHOOK.

Supreme Court of North Carolina.

Dec. 22, 1900.

JUDGMENT—RES JUDICATA—WILL—ENFORCEMENT—PARTIES.

1. Testator's will provided that $500, or so much thereof as might be necessary, should be set apart to build a certain fence around a certain chapel graveyard. The trustees of such chapel sued testator's executor to recover the $500, and judgment was rendered against them. Subsequently, there being sufficient assets in the executor's hands, and he having refused to erect the wall, and having declared that he intended to keep the $500 as residuary legatee, another action was brought for specific performance of the provision. Held, that the judgment in the first action was not a bar to the second action, since the causes of action were different.

2. Where a testator's will provides that a certain sum of money shall be set aside to build a certain fence around a certain chapel cemetery, the trustees of such chapel are the proper parties plaintiff to require the executor to perform the provision of such will.

Appeal from superior court, Macon county; McNeill, Judge.

Action by J. L. Cabe and others, trustees, against A. J. Vanhook, executor. Prom a judgment in favor of defendant, plaintiffs appeal. Reversed.

J. F. Ray, for appellants.

Jones & Johnston and Shepherd & Shepherd, for appellee.

CLARK, J. 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 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 plaintiffs began this action against the defendant, alleging, among other things, besides the clause of the will and other matters stated in the first action, 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...