10383

#### BARTELL *ET AL*v. EDWARDS *ET AL.*

(102 S. E. 210.)

1. Judgment — Conclusive as to Matters That Might Have Been Raised and Decided. — Plaintiff’s ancestor having claimed a fee in an entire tract, and it having been adjudged in an action by her that she only had a life estate, neither she nor her privies or heirs could after-wards claim that she was entitled to a fee in one-third thereof, although the question as to a one-third interest was not raised, as it might have been litigated.

2. Wins — Wife as Life Tenant Not "Heir” Undek Will. — Where wife owned a plantation and conveyed it in fee to her husband, who immediately executed a paper in form of a will bequeathing the plantation to the wife during her lifetime, and after her decease “the said plantation shall return to the heirs” of the husband, such wife was not included as a remainderman, and her heirs were not entitled to participate in the distribution on her death after the death of the husband.

Before PeuriEoy, J., Elorence, - term, -.

Affirmed. .

Action by Sarah A. Bartell and others against Barnabas Edwards and others. Judgment for defendant, and plaintiffs appeal.

*218
      *Messrs. C. J. Casque*and *Lee & Shuler,*for defendant,

cite: *As to covenants to stand seised to uses*— their *characteristics and requisites:*2 Blackstone, p.. 338; 4 S. C. 634; 1 Am. Dec. 231; 1 Am. Dec. 229; 4 Kent 493; 24 S. C. 234; 3 Washburn, p. 606. *Except in wills and trust deeds, a fee cannot he created without the use of words of limitation:*101 S. C. 424; 102 S. C. 361; 109 S. C. 44! *Limitar tion to the heirs of grantor is void:*38 S. C. 66; 75 A. S. R. 152; 16 Cyc. 61, note; 1 Strobh. Eq. 114; 109 S. C. 416; 102 S. C. 360. *There is a wide difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action brought upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action:*15 R. C. D. 951-962; *77*S. C. 493. *If different evidence would be required, a judgment in one case is no bar to the other:*15 R. C. D. 964. *The causes of action being different, it must appear here that the precise point in issue was decided in the first action in order that the doctrine of res adjudicata may apply:*17 S. C. 40; 50 S. C. 87; 77 S. C. 493. *Judge Shipp expressly decided in the first action that the deed executed by Martha Edwards to her husband on July 28, i8yq., and the instrument executed by him to her on the same day, constituted one transaction, being in effect a conveyance of the fee in the land to him, with an exception in favor of*herself, *and the respondent here, who were defendants in that action, are estopped by the judgment of Judge Shipp:*15 R. C. L„ 973-975; 63 A. S. R. 234.

*Messrs. Willcox & Willcox, G. E. Stalvey*and *Henry*B. *Davis,*for respondents. *Messrs. Willcox & Willcox*

cite: *As to covenants to stand seized to uses*— their *characteristics and requisites:*24 S. C. 235; 1 Rich. 161; Willis 682; Willis 673; 4 Taunt 20; 4 Kent 465; 2 Ark. 148; 3 Preston on Abstracts 13, 14; 4 Code 175; 7 Bro. P. C. 70; T. R. 474; 1 Vent. 137; 3 Dev. 291; 4 Mod. 150; 2 Roll Ab, 796; 1 *219P. Will 162; 2 Wilson 22, 75; Willis Rep. 673; Shep. Touch. 86; 1 Rich. 170; 4 Wecc., p. 617; 44 DeS. 264; 52 S. C. 110; 83 S. C. 329; 89 S. C. 198, 216; 64 Am. Dec. 147; 13 Cyc., pp. 523 and 624, and notes; 12 S. C. 564; 16 S. C. 142; '84 S. C. 468. *This action, under the principles of res judicata, is barred by the former decree in the case of Martha B. Edwards v. Barnabas Edwards et al.:*52 S. C. 175; Bailey’s Equity 362; 4 Richardson’s Equity 370; 19 S. C. 150; 33 S. C. 498; 43 S. C. 221; 48 S. C. 154; 48 S. C. 321; 50 S. C. 68; 63 S. C. 406; 67 S. C. 224; Bouvier’s Institutes 373, 374; 77 Am. St. Reports 820; 23 Cyc., p. 1253; 52 S. C. 166; 94 U. S. 351; 81 S. C. 516; 205 U. S. 122; 51 E. Ed. 741; 91 U. S. 526; 23 E. Ed. 416; 124 U. S. 225; 31 E. Ed. 411; 8 Sup. Ct. Rep. 495; Freeman, Judge, on paragraph 267; 94 U. S. 351; 24 E. Ed. 195; 167 U. S. 396; 42 E. Ed. 210; 17 Sup. Ct. 905; 168 U. S. 1; 42 E. Ed. 355; 18 Sup. Ct. Rep. 252; 191 U. S. 499; 48 E. Ed. 276; 24 Sup. Ct. Rep. 154; Herman Estoppel, paragraph 92; 192 U. S. 355; 48 E. Ed. 476; 24 Sup, Ct. Rep. 266; 1 Salk. 11; 2 Allen 331; Ereeman, Judge, on 4th Ed., pars. 238-241.

February 23, 1920.

The opinion of the Court was delivered by

Mr. Justice Fraser.

This case was brought as an áction for partition. The defendants set up title in themselves. The case had been ably argued on both sides with a display of much learning, but, as this Court sees it, the case is, in its last analysis, very simple.

William Edwards and Martha E. Edwards were husband and wife. Martha owned a plantation and conveyed it in fee simple to her husband. On the day of the conveyance Edwards executed a paper, in.form a will, as follows:

> “State of South Carolina, Marion County. In the name of God, Amen. I, Wm. Edwards, of the said State and *220county, being of sound mind and memory and considering the uncertainty of this.frail and transitory life, do, therefore, give and bequeath to my beloved wife during her lifetime one plantation or tract of land containing three hundred and four acres, conveyed by her to me on the 28th day of July, 1874, bounded N. E. by S. Parker’s land, E. by Capt. McWhite’s and H. Bartell’s land, south by Eittle and Big Swamp and S. W. by lands of the estate of B. I. Bos-tick, and it is the condition of this will that after her decease the said plantation shall return to the heirs of Wm. Edwards. In witness whereof, I have hereto set my name and seal this twenty-eighth day of July, one thousand eight hundred and seventy-four. William Edwards.”

This so-called will had only two witnesses, and was filed for record and recorded on the same day as the deed. The papers were then taken back and delivered to and kept by Martha. William predeceased Martha. After the death ‘ of William, Martha brought action against the heirs at law of William (the children of a former marriage) to declare the deed void for fraud and the so-called will a nullity. The case was tried before Judge Shipp, who sustained the deed and refused to declare the so-called will a nullity, but held that, while the so-called will was inoperative as a will, yet the two papers, taken together, set forth the true contract between the parties, and that the real contract as evidenced •by these two writings conveyed the fee to William with a life estate to Martha, and a remainder to the heirs of William, after Martha’s death. William died in 1894, and Martha died in 1914. After the death of Martha, this action was instituted by her heirs at law for partition, and plaintiffs claimed title, on the ground that Martha was the wife and one of the heirs at law of William, her husband.

*221
      1
      *2201. The first defense to be considered is that the plaintiffs are estopped by suit brought by Martha against the heirs of *221William. This position must be sustained. It is elemental law that a judgment not only estops the parties to the action and their privies from again raising the questions at issue in that case, but also such questions as might have been raised and decided by it. Martha having claimed a fee in the whole tract, and it having been adjudged that she had only a life estate, neither she nor her privies could afterwards claim that she was entitled to a fee in one-third thereof.

2 2. While it is not necessary to consider the other defenses, yet it may not be amiss to do so. The defense claims that Martha was not included as a remainderman, even though the word “heirs” was used, and Martha, as the wife, was one of the heirs of William. This defense is also sustained. Judge Peurifoy heard this case and sustained the defense.

The appellant cites *Rochell v. Tompkins,*1 Strob. Eq. 114, as conclusive authority for appellants. The case does not bear out the appellant’s contention. In *Rochell v. Tompkins*the wife was given a life estate, with a reversion to the estate of the testator. The testator was intestate as to the remainder, and, of course, the wife, as an heir, inherited her share of the remainder. Here there was a remainder over after the death of Martha, the life tenant, and that remainder did not take effect until Martha was dead and could not inherit.

There are some questions reserved for future determination, and they are left open.

The judgment appealed from is affirmed.