The opinion
Stacy, 0. J.
There is error in tbe instruction, duly excepted to, which places tbe burden of proof simultaneously on propounder and caveators. Boone v. Collins, post 12. Tbe burden of proving tbe affirmative of a single issue cannot rest on both parties at tbe same time. Speas v. Bank, 188 N. C., 524 , 125 S. E., 398 .
Nor can tbe instruction be upheld under what was said in In re Rawlings’ Will, 170 N. C., 58 , 86 S. E., 794 , for there, tbe execution of tbe will, tbe burden of which was on tbe propounder, and tbe alleged mental incapacity of tbe testator, tbe burden of which was on tbe caveators, were submitted under separate issues. The wisdom of dividing the issues when alleged undue influence and mental incapacity are set up as grounds for the caveat, rather than try tbe whole matter on tbe one issue of devisavit vel non, was pointed out in that case, and is illustrated by this one. See, also, In re Will of Brown, 200 N. C., 440 .
New trial.