#### N. W. BOYETTE et al. v. A. S. BARNES, Executor of ALICE COLE, Deceased, and the METHODIST ORPHANAGE OF RALEIGH, NORTH CAROLINA.

(Filed 29 June, 1932.)

Appeal and Error Jj c — Where rights tinder a will have been adjudicated the decision becomes rule of property and is conclusive.

Where the rights of a devisee under a will have been determined in a former appeal to the Supreme Court, the decision becomes a rule of property and is determinative of the rights of the parties, and in a later action brought by those claiming under the parties to the former action the former judgment is conclusive.

Civil actioN, before *Oowper, Special Judge,*at January Special Term, 1932, of JohNSTON. Judgment was rendered upon “an agreed statement of facts.”

William G. Yelvington died in 1907, leaving a last will and testament. At tbe time of bis death be was tbe owner in fee simple of tbe lands in controversy. He left a wife, Mary J. Yelvington, and one daughter, Alice Yelvington, who married W. W. Cole. In items 4 and 7 of the'will of William G. Yelvington be devised tbe land in controversy to 'bis wife, Mary J. Yelvington, during her natural life and then to bis daughter, Alice. Item 7 is as follows: “I give and devise all tbe remainder of my real estate wherever situate, to my wife Mary J. Yel-vington during her natural life, then to my daughter Alice and her children, if any, but if my daughter Alice die leaving no living issue then to the heirs at law of my wife Mary J. Yelvington in fee.” Mary J. Yelvington died in 1920, and tbe plaintiffs are her brothers and sisters, and tbe children of a deceased sister who died intestate. Alice Yelving-ton Cole died on 15 May, 1931, leaving a last will and testament in which she devised in item 7 thereof all of her real estate to the defendant, Methodist Orphanage at Raleigh, North Carolina. The plaintiffs claiming to be the heirs at law of Mary J. Yelvington under the will of William G. Yelvington, instituted an action against the Orphanage, alleging that they were the owners in fee of the land described in the complaint. The defendant, Orphanage, claimed the land under the will of Alice Yelvington Cole.

The trial judge decreed that the defendant Orphanage was the owner of all the land in controversy in fee and entitled to the immediate possession thereof, from which judgment the plaintiff appealed'.

*Abell & Shepherd and Oeo. K. Freeman for 'plaintiffs.*

*Biggs & Broughton for defendants.*

*146Per Curiam.

The will of *W.*G. Yelvington was construed by this Court in an opinion filed 29 September, 1920, in the case of *Cole v. Thornton,*180 N. C., 90. In disposing of the question the Court said: “This being the correct rule of construction, and it being kept in mind that the life tenant, Mary J. Yelvington, is dead, and that no children have ever been born to the daughter Alice, the devise would read ‘to my daughter Alice in fee, but if she die leaving no living issue, then to the heirs at law of my wife, Mary J. Yelvington,’ and, if so, if children are born, she has the fee, and if there are no children, she would still be the owner in fee as the only heir of Mary J. Yelvington, and, in either event, can convey in fee.”

The original record in *Cole v. Thornton, supra,*discloses that it was contended that W. G. Yelvington did not intend to convey to his daughter Alice a fee simple but only a life estate, “or at most an estate in common with her children, if any, which would make her present estate contingent upon her dying without leaving living issue.” Consequently, it is clear that the identical proposition now in controversy was expressly adjudicated in the case of *Cole v. Thornton, supra.*If the construction of the will of William G. Yelvington were an open question, there might be a sharp division of opinion upon the merits of the controversy, but the former opinion of the Court in *Cole v. Thornton*has become a rule of property and determinative of the rights of the parties.

Affirmed.