(dissenting).
At the close of the contestants’ case the attorney for the proponent made the following motion:
“At this time, on behalf of Martha Whelan, I make a motion for a direct*188ed verdict in her favor that the appeal be dismissed, that the execution of the will of the testator be declared valid, and that the will be declared to be the legal, valid will of the testator, on the grounds and for the reasons that there is not sufficient evidence to support any verdict or findings of improper execution of the will or undue influence in the making of the will.”
This motion was resisted by the contestants and denied by the court. The attorney for the contestants then said:
“We wish to make a motion at this time, your honor. At this time the contestants make a motion that the court direct a verdict in their favor on the grounds that this is not the will of Henry Burris, for the reason that it was not executed according to the law of the state of North Dakota, in that it was not signed by Henry Burris, and the evidence is undisputed in this case that Henry Burris could write, was not a man that could not write; and the evidence is undisputed that he was not in any particular ill health on the 22nd day of November, and the doctor testified that it would not have harmed him in any way to have him write his name on that day. And the evidence is undisputed that in April, 1951, six months later, he did write his name to the extent that it was recognizable and accepted by the attorney, W. T. Depuy, as his signature as of that time. And for that reason, this will not having been executed according to the law of the State of North Dakota, the contestants are entitled to a directed verdict of this court holding that this is not the will of Henry Burris.”
The attorney for Martha Whelan then asked the court to take the case from the jury since both parties had asked for directed verdicts, whereupon the attorney for contestants said:
“We have not made a motion for directed verdict on the issue of undue influence. We have made it only on the matter of the execution of the will.”
A recess was taken and on the resumption! of the consideration of the matter the attorney for the proponent asked the court that the issue of execution of the will be withdrawn from the jury and that the-court decide whether or not the will was properly executed. The attorney for the-contestants said:
“We ask that that issue also be submitted to the jury on the ground that the question of his ability to write on the 22nd of November would be a question of fact for the jury.”
The court reserved his ruling and proceeded with the trial of the case before the-jury.
At the close of all the evidence the attorney for the proponent renewed his motion made at the close of the contestants’’ case. The attorney for the contestants-asked the privilege of renewing his former motion for a directed verdict conditionally,, saying:
“And I am asking — the only motion that we would make, and that would reserve the right, if our motion was denied, to have the issue of Henry Burris’ ability to write as a question for the jury, if the court denied our motion. But if the court does not recognize our right to reserve that, then we are not making any motion at this time.”
The court refused to permit the contestants to move for a directed verdict and at the same time reserve the right to have-the question of execution of the will submitted to the jury if that motion was denied, saying:
“if then the defendants or contestants make a motion on any essential
*189part of the issues of the case, that that issue will be taken from the consideration of the jury and decided by the court.”
The attorney for the contestants then said: “We make no motions.”
The attorney for the proponent stated:
“At this time then the plaintiff, Martha Whelan, objects to the submission to the jury of the question with respect to the due and proper execution of the will, on the grounds and for the reasons that under the evidence in this case that it has become entirely a question of law, and that question, and no phase of that question should be submitted to the jury for determination.”
To which the court replied: “I am going to deny the motion.” and proceeded to instruct the jury.
In his instructions the court said:
“The burden of proof is on the proponent of said will to establish by a fair preponderance of the evidence all the material allegations of her petition.
“The court instructs the jury that the material allegations of her petition which the petitioner must establish by a fair preponderance of the evidence before said alleged will can be be proved and allowed for probate' are: * * * .”
The court then stated ten allegations which the proponent must establish, among them being:
“4. That the said Henry Burris, on or about the 22nd day of November, 1950, executed a written document, which is proponent’s exhibit 2 in this case, which written document purports to be his last will and testament.
“5. That said Henry Burris, the alleged testator, signed the said document, proponent’s exhibit 2, in the presence of attesting witnesses.”
After stating the ten allegations the court continued:
“The court instructs the jury that the signature of Henry Burris to the alleged will has been made by what is known as his ‘mark’. The statutes of this state provide that ‘signature’ or ‘subscription’ shall include ‘mark’ when the person cannot write, his name being written near it and written by a person who writes his own name as a witness.”
Following this the court gave to the jury in substance the statutory provisions for the execution and attestation of wills. After completing that part of his instructions to the jury the court proceeded to instruct on the question of undue influence as outlined in the majority opinion.
The record indicates that in the minds of the attorneys and the court the execution of the will was an issue in the case. The point of disagreement was whether the question of execution should be resolved by the court or by the jury. The court submitted that question to the jury along with the issue of undue influence. The jury returned a general verdict that the will of Henry Burris “is not a valid will.” On the former appeal of this case we determined that the signature of the testator by mark was sufficient to comply with the requirement of our statutes and we expressed the opinion that in other respects the execution of the will met the requirements of Section 56-0302, NDRC 1943 providing how wills must be executed and attested. It follows therefore that there was no question to be submitted to the jury with ■respect to the execution of the will and the •submission' of that question by the trial court was erroneous.
On the other issue, that of undue influence, we found the evidence sufficient to sustain the verdict of the jury that the will was invalid. In re Burris’ Estate, N.D., 72 N.W.2d 884.
*190In Bentley v. Oldetyme Distillers, 69 N.D. 587, 289 N.W. 92, paragraph 2 of the syllabus, we said:
“When the sufficiency of the evidence has been challenged by motion for a directed verdict, a new trial should be granted on that ground where the evidence and the charge to the jury disclose two distinct inconsistent theories, the evidence being sufficient to indicate a right of recovery on the one but not on the other, and it is impossible to say on which theory the jury found, though no exception is taken to the instructions under which the cause is submitted.”
See also Black v. Smith, 58 N.D. 109, 224 N.W. 915; McLeod v. Simon, 51 N.D. 533, 200 N.W. 790.
In Cavallero v. Travelers Insurance Co. of Hartford, Conn., 197 Minn. 417, 267 N.W. 370, the same general rule is stated thus:
“Where two or more material issues are submitted to the jury and a general verdict returned, and one issue so submitted is not sustained by any evidence, there must be a new trial unless it conclusively appears that the party in whose favor the verdict was obtained was entitled thereto as a matter of law on one or more other issues submitted.”
The applicability of this rule to a case such as the one before us is illustrated by In re Overpeck’s Will, 144 Iowa 400, 120 N.W. 1044, 122 N.W. 928. This was a will contest case involving the questions of the testatrix’s mental capacity and undue influence. The evidence was sufficient to warrant the submission to the jury of the question of capacity but was insufficient to warrant the submission of the question of undue influence. The jury found Lor the contestants. The Iowa Supreme
Court in reversing a judgment based on that verdict said [120 N.W. 1046]:
“If there had been a special finding of want of mental capacity, we might say that the error in submitting the issue as to undue influence was without prejudice. In re Estate of Wharton, 132 Iowa 714, 109 N.W. 492; In re Will of Selleck, 125 Iowa 678, 101 N.W. 453. But in the absence of such finding, we are unable to infer that the verdict for contestants was based upon the evidence of want of mental capacity, which was properly submitted to the jury’s determination, rather than upon the issue as to undue influence, of which there was no evidence to support a finding for contestants.”
This is an appeal from an order granting a new trial. In a memorandum opinion the trial court gave his reason for the order as follows:
“It is apparent from the review of the record in the case as contained in the lengthy transcript that the court erred in the submission of the case to the jury for a general verdict on two different issues.”
I agree with the trial court. The two issues, whether the will' was executed in compliance with statutory requirements and if so executed whether its execution was obtained by undue influence, were submitted to the jury. The evidence was insufficient to sustain the verdict on the ground of nonexecution. It was sufficient to sustain the verdict on the ground that the execution of the will had been procured by undue influence. The verdict being a general one and it being impossible to ascertain upon which issue the jury rested its verdict, the order granting a new trial should be affirmed.