dissenting: By its answer to the two issues submitted, the jury determined (1) that Daniel J. Hendricks, Sr., on 15 April 1965, lacked mental capacity to execute the deed to defendant Daniel J. Hendricks, Jr., which plaintiffs seek to set aside, and (2) that the deed was procured by the undue influence of Daniel J. Hendricks, Jr. The answer to either issue is sufficient to support the judgment setting the deed aside. Therefore, even if it be conceded arguendo that the submission of the issue of undue influence was not warranted by the evidence; that incompetent hearsay declarations of the grantor tending to establish undue influence were admitted; and that there was error in the charge with reference to the second issue, these errors did not affect the first issue. The challenged declarations of the grantor were to the effect that he had not promised defendant-grantee anything; that if he owed him anything extra he had given him a building lot. Defendants state in their brief that his statement, “rather than revealing a man who lacks mental capacity, shows a man who is very much in control of the situation. It tends to prove, rather than to disprove, adequate mental capacity.” The admission of this evidence, therefore, did not prejudice defendant on the first issue. Neither, in my opinion, did the submission of the second issue and the charge with reference to it.
The majority, however, would vacate the jury’s verdict upon the first issue because the judge permitted witnesses for plaintiff to answer the following question:
“. . . [D]o you have an opinion satisfactory to yourself as to whether or not Daniel J. Hendricks on these occasions when you did see him between 29 January 1965 and 15 April 1965 had sufficient mental capacity to understand the nature and consequences of making a deed, its scope and effect, and know what land he was disposing of, and to whom, and how?”
All question of grammar aside, this question is phrased in substantial compliance with the rule laid down in McDevilt v. Chandler, 241 N.C. 677, 86 S.E. 2d 438 — the case upon which the majority relies to award a new trial. In McDevitt, the question which the court *351condemned was asked by the trial judge himself and was: “Is it your opinion on that day she didn’t have sufficient mental capacity to make a deed?” In awarding a new trial this court said that a witness may not make the abstract statement that a grantor “did not have sufficient mental capacity to make a deed,” because such capacity is a conclusion which the law draws from certain facts as a premise. These facts are: “[wjhether the grantor understood what he was doing — the nature and consequences of his act in making the deed; that is, whether he knew what land he was disposing of, to whom, and how.” Id. at 680, 86 S.E. 2d at 440. (Emphasis added.) Analysis reveals no difference between the foregoing rule from Mc-Devitt and the question propounded to plaintiffs’ witness in this case. The question here also complies with the test for contractual capacity quoted in the majority opinion from Goins v. McLoud, 231 N.C. 655, 58 S.E. 2d 634.
It is noted that in Goins v. McLoud, supra, a suit also involving the validity of the deed, the jury found (1) that the grantor lacked mental capacity to execute the deed and (2) that its execution had been procured by fraud and undue influence. On appeal, this court found error affecting the first issue but not the second. A trial de novo was ordered because the court thought the question of undue influence and fraud was, in both the complaint and evidence in that case, so tied up with the mental condition of the grantor that it was the strongest factor leading to the answer to the second issue. Such is not the situation here. I vote to sustain the judgment entered in the court below.
Bobbitt, J., joins in the dissenting opinion.