Lowe v. Holder

Little, J. 1. The will which is sought to bé construed in the present action was passed upon by this court in the case of Lowe v. Cloud, 45 Ga. 481. That case arose on a bill filed by the executor against certain defendants, one of whom is the plaintiff in error here, praying for direction and a construction •of the second item of the will of M. M. Shaw. The predecessors in title of the defendant in error were parties in that case. The superior court of Warren county held that the Tarvers took a fee-simple estate in the land covered by the second item •of the will. In reviewing the decision so rendered, this court held that the second item of the will conveyed “a fee” in the land to Elizabeth Tarver and Margaret Ann Tarver, upon their compliance with the condition, that is to say, upon their going upon the land to live. It seems to us that the judgment rendered in that case is binding and conclusive upon the parties now before the court, according to the present record. 2. It will be noted that the decree by the chancellor in the case to which we have just referred held that the Tarvers, the devisees in the second item of the will, took a fee-simple estate in such land. It is true that this court, in passing on the •case, held that the words used in this devise conveyed a fee in the land to the Tarvers; but, considering the question which was then before the court for determination, .it is clear that in using the word fee there was no intent on the part of this court to limit the estate conveyed; and the meaning of that judgment and decision is, that the Tarvers under the terms of the second item of the will, took an absolute fee to the land therein described, when they complied with the condition named in the will, that is to say, upon their going upon the land to live. It is not necessary for us to consider, nor do we pass upon, the •correctness of the decision then rendered. The question raised in the present record, according to our interpretation of that •case, was fully and finally decided, and has been, since the rendition of the judgment therein, res adjudicata between the parties to the present case; and the judgment of the court below is Affimed. A ll the Justices concurring.