Issue of devisavit vel non raised by a caveat to the will of James Turnage, late of Pitt County, and based upon alleged mental incapacity and undue influence.
The issue was originally tried at the September Term, 1934, and resulted in a verdict for the propounders on the issue of mental capacity and for the caveator on the issue of undue influence.
On appeal the exceptions addressed to the issue of mental capacity were dismissed as cured by the verdict, and a new trial ordered for failure to direct a verdict in favor of the propounders on the issue of undue influence. In re Will of Turnage, ante, 130.
On the present hearing, the evidence being practically the same on the issue of undue influence as it was at the first trial, the court directed a verdict for the propounder in accordance with the opinion rendered on the first appeal, and declined to resubmit the issue of alleged mental incapacity, interpreting our opinion as limiting the new trial to the issue of undue influence. Objection; exception; appeal by caveator. Caveator is without substantial ground for complaint. He has had two bites at the cherry, and his Honor was justified in interpreting our opinion as he did.
The verdict and judgment will be upheld.
No error. *Page 849