In Re Will of Brown

Stacy, C. J. The conflict in the charge on a material issue entitles the propounder to a new trial. It is well settled that where there are *441 conflicting instructions witb respect to a material matter, a new trial must be granted, as tbe jurors are not supposed to know wbicb one of tbe two states tbe law correctly, and we cannot say tbey did not follow tbe erroneous instruction. S. v. Falkner, 182 N. C., 793, 108 S. E., 756; Edwards v. R. R., 132 N. C., 99, 43 S. E., 585. Again, it bas been tbe law of tbis jurisdiction, since tbe decision in Mayo v. Jones, 78 N. C., 402, that, upon tbe trial of an issue of devisavii vel non, tbe burden of proving tbe alleged insanity of a testator is on tbe caveator or tbe one wbo alleges it. In re Burns’ Will, 121 N. C., 336, 28 S. E., 519. It is true, tbe issue of undue influence was also answered in favor of tbe caveators, wbicb ordinarily would render an error on tbe separate issue of mental incapacity harmless (In re Rawlings’ Will, 170 N. C., 58, 86 S. E., 794), but as tbis was contrary to tbe court’s instruction, tbe judge having told tbe jury not to consider tbe issue of undue influence, if the issue of mental incapacity were answered in favor of tbe caveators, wbicb it was, we cannot say that' tbe jury did not thereafter act perfunctorily in determining tbe issue of undue influence. On tbe issue of tbe due execution of tbe original will, and perhaps tbe codicils as well, it would seem that tbe propounder was entitled to a directed verdict. As to whether those of tbe caveators wbo have heretofore accepted benefits under tbe will, will or will not be estopped from sharing in tbe estate or be required to account for such benefits, in tbe event tbe caveat is sustained, is not now before us for decision. New trial.