#### CABE v. VANHOOK.

(December 22, 1900.)

1. Former Adjudication — Judgment—Two Causes of Action —Will—Speci'/ic Performance.

A judgment that a party can not recover a sum set aside ih 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.

Civil. ActioN by J. L. Cabe, J. P. Brown, and others, trastees of Clark’s Chapel and Cemetery, against A. J. Van-hook, executor of T. C. Vanhook, heard by Judge Thos. A. McNeill, at Spring Term, 1900, of MacoN Superior Court. From judgment for defendant, the plaintiffs appealed.

J. F. Pay, for the plaintiff.

J ones & J ohnston, and Shepherd & Pusbee, for the defendant.

Claek, 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 *425an action against tbe defendant to recover tbe $500, to be expended by them in putting up tbe wall provided for in tbe will. Tbe defendant demurred on tbe ground tbat tbe will did not devise said sum, or any other amount, to tbe trustees of Clark’s Cbapel, and tbat tbey were not entitled ft* recover. At Eall Term, 1897, tbe demurrer was sustained, and judgment rendered against tbe plaintiffs tbat “tbey take nothing by their action,” and tbat tbe defendant recover costs. . Immediately thereafter tbe plaintiffs began this action against the defendant, alleging, among other things, besides tbe clause of tbe will and other matter stated in tbe first action, tbat several thousand dollars over and above tbe debts and liabilities of tbe estate bad come into tbe bands of tbe defendant, and that be bad refused either to turn tire $500 over to tbe trustees of tbe church to build the fence prescribed in tbe second clause, or to build tbe same himself, though be bad often been requested so to do-, and tbat tbe defendant bad time and again declared tbat be intended to put tbe $500 in bis own pocket (he being tbe residuary legatee), and tbat no fence should be built with the funds of the testator set apart in tbe will for tbat purpose, and praying judgment either’ tbat defendant turn over to them sufficient funds to build said wall, or tbat tbe Court decree specific performance, by requiring tbe defendant to erect, or cause to be erected, the wall as described and directed by the second clause of tbe will. The defendant, answered, and, among other things, ser up as a defense tbe pleadings in tbe former action, and tbe judgment as aforesaid upon tbe demurrer, rendered at Fall Term, 1897. His Honor sustained tbe plea of res judicata. and held tbat this action was barred by said judgment. In this there was error. It is true, tbe plaintiffs and defendant are the same, and the subject-matter (tbe devise for tbe erection of a wall around tbe graveyard) is the same. But the *426cause of action is different. Tlie former action was for tbe recovery of $500, to be expended by the plaintiffs. 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. Those 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 (at this term). The judgment is therefore set aside.

Error.