#### In re Will of W. R. STALLCUP.

(Filed 23 December, 1931.)

Wills D i — Instruction in this caveat proceeding held erroneous as placing burden of proof on the issue on both parties at the same time.

In a caveat proceeding the trial court instructed the jury that if they should find by the greater weight of the evidence that the testator had sufficient mental capacity at the time of executing the paper-writing to understand the nature and character of the property disposed of, who were the objects of his bounty, etc., they should answer the issue in the affirmative, but if they found from the greater weight of the evidence that the contrary was true that they should answer the issue in the negative, *Meld,:*the instruction placed the burden of proof on the one issue on both parties simultaneously, and a new trial is ordered. The advisability of separating the issues when undue influence and mental incapacity are alleged is pointed out.

Appeal by propounder from *Oglesby, J.,*at April Term, 1931, of Macon.

*7Issue of *devisavit vel non,*raised by a caveat to tbe will of "W. E. Stallcup.

Tbe following excerpt from tbe charge constitutes one of propounder’s exceptive assignments of error:

“Tbe court further instructs you if you find from tbe evidence and by its greater weight that *~W.*E. Stallcup at tbe time be executed tbe paper-writing bad sufficient mental capacity to understand tbe nature and character of tbe property disposed of, who were tbe objects of bis bounty and bow be was disposing of tbe property among tbe objects of bis bounty, then be was capable of making a valid disposition of bis property by will, and you would answer tbe issue, Yes. But, if you find at tbe time be executed tbe paper-writing, be didn’t know what be was doing and didn’t understand what property be bad and didn’t know and understand tbe nature and effect of bis acts, and if you find tbe facts so to be by tbe greater weight of tbe evidence, then you will find be didn’t have sufficient mental capacity to make a will and you would answer tbe issue, No.”

The jury returned tbe following verdict:

“Is tbe paper-writing offered by tbe propounder, and every part thereof, tbe last will and testament of *W.*E. Stallcup? Answer: No.”

From a judgment on tbe verdict declaring tbe paper-writing null and void, tbe propounder appeals, assigning errors.

*Felix E. Alley, J. N. Moocly and T. J. Johnston for propounder.*

*J ones & J ones, George Patton and Jones & Ward for caveators.*

Stacy, 0. J.

There is error in tbe instruction, duly excepted to, which places tbe burden of proof simultaneously on propounder and caveators. *Boone v. Collins, post*12. Tbe burden of proving tbe affirmative of a single issue cannot rest on both parties at tbe same time. *Speas v. Bank,*188 N. C., 524, 125 S. E., 398.

Nor can tbe instruction be upheld under what was said in *In re Rawlings’ Will,*170 N. C., 58, 86 S. E., 794, for there, tbe execution of tbe will, tbe burden of which was on tbe propounder, and tbe alleged mental incapacity of tbe testator, tbe burden of which was on tbe caveators, were submitted under separate issues. The wisdom of dividing the issues when alleged undue influence and mental incapacity are set up as grounds for the caveat, rather than try tbe whole matter on tbe one issue of *devisavit vel non,*was pointed out in that case, and is illustrated by this one. See, also, *In re Will of Brown,*200 N. C., 440.

New trial.