We assume, without deciding, that there is in this record a bare question of fact as to whether or not Mrs. Townsend signed this will. On the one hand, there is the testimony of the three attesting witnesses, and of a handwriting expert of thirty years’ experience, supported by the fact that the will leaves testatrix’ estate to her closest Mn, and that its provisions are not unnatural, and are substantially the same as those she had discussed previously with an attorney. On the other hand, there is testimony by two laymen that they were familiar with the handwriting of Mrs. Townsend and that, in their opinion, the signature on the propounded paper was not hers.
The jury tried the issues under a framed order, entered following the filing of contestants’ objections. That order contained six questions relating to (1) execution; (2) publication; (3) whether there were two witnesses; (4) mental competency; (5) freedom from restraint; and (6) fraud, deceit or undue influence. Counsel for both contestants called them “ the usual shotgun ” objections. During the trial, contestants’ attorneys conceded that there was no real claim of unsoundness of mind, undue influence, or duress, and that “ The objections are addressed solely to the execution of the will”, to which the court responded, “ Very well.” Thus, all other framed issues were out of the case. Nevertheless, the court thereafter permitted, on the stated ground that it had a bearing on the fraud question, testimony by two of contestants’ witnesses that they would not believe another witness under oath. Nor did the court submit to the jury the issue with respect to execution *426as framed, but substituted an issue as to whether the will was “ duly executed ”, without any instructions as to the meaning of that technical phrase.
Not only does this record contain insufficient proof of fraud, but, by concession, fraud was out of the case. Nevertheless, counsel for the parties tell us that both sides summed up to the jury on a supposed issue of fraud, and we do not know whether the jury’s finding was that Mrs. Townsend was defrauded into signing the will or that she did not sign it at all. A new trial is necessary.
The order of the Appellate Division and the decree of the Surrogate’s Court should be reversed and a new trial granted, with costs to abide the event.
Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.
Order reversed, etc.