It addition to the statements made in the head-note, it is only necessary to add: An analysis of the declaration filed in this case will disclose, that the present suit is brought against R. W. Huff in his representative capacity, as executor of the will of James M. Huff, the will having been admitted to probate in common form, and the defendant having qualified and taken possession of the estate. In the case wherein the judgment now pleaded as res adjudicaba to the present suit was rendered, the action brought was an action on the case against the defendant in his individual capacity, seeking to recover damages for his personal misfeasance in fraudulently permitting the probate of the will in solemn form to be defeated. The loss of the legacies, because of the wrongful conduct of the executor, being the actual amount of the damages sustained by the plaintiffs in consequence of the executor’s culpable failure to secure the probate of the will in solemn form, it became material only that the value of the legacies should be stated as fixing the measure of damages. In that case the legacies were only incidentally involved. In the present case the action is for the legacies themselves against the executor, and they are accordingly the direct subject of the controversy. The two causes of action are totally different, and the judgment upon the former case, it having been dismissed upon general demurrer, cannot be pleaded to the present action as res adjudicaba. The court therefore erred in overruling the motion to strike the plea.
Judgment reversed.