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In Re Will of John R. Henderson.
Bbogden, J. The jury found in response to the first issue that the paper-writing and every part thereof was the last will and testament of *761 Jobn R. Henderson. Nevertheless, in response to the third issue, the jury-found that the testator did not have sufficient mental capacity to make a will. The result is that the first issue finds the will to be valid, and the third issue finds it to be invalid.
It was held for law in Crabtree’s case, 200 N. C., 4, 156 S. E., 98, that when a will has been duly executed by the maker, in accordance with all the formalities of law, it is presumed to be a valid paper-writing and the maker presumed to have capacity to make such instrument, in the absence of fraud or undue influence. It is manifest, therefore, that the verdict is materially repugnant.
Discussing a repugnant verdict in Wood v. Jones, 198 N. C., 356, 151 S. E., 732, Clarkson, J., wrote: “A verdict should be certain and import a definite meaning free from ambiguity. The jury cannot find both for the plaintiff and the defendant on the same issue, as for instance, by a verdict giving the plaintiff damages and finding the defendant not guilty.
And a verdict which is too uncertain or indefinite to be construed either as a general or special verdict may be rejected by the court as meaningless and of no effect.” See, also, S. v. Godwin, 138 N. C., 582, 50 S. E., 277; S. v. Snipes, 185 N. C., 743, 117 S. E., 500.
The record discloses that the trial judge instructed the jury as follows: “The law requires the caveators to prove that he did not have sufficient mental capacity to make a will, and if they have satisfied you that he did not have sufficient mental capacity to make a will, then you must answer the first issue “No.” In view of this instruction, the fact that the jury answered the first issue “Tes,” would tend to show that the testator did have sufficient mental capacity to make a will.
It is apparent that the verdict is uncertain and ambiguous so as to warrant a new trial. There are exceptions to certain evidence and to a portion of the charge, but as a new trial must be awarded, the court does not deem it necessary to discuss these exceptions. New trial.