Tbis is an issue of devisavit vel non. Tbe grounds alleged by tbe caveators, as set out in tbeir brief, were non-execution, mental incapacity and undue influence. Tbe court at first submitted one issue: “Is tbe paper-writing- propounded by T. J. Herring and others, and every part thereof, tbe last will and testament of William I. Herring, deceased?”
After tbe ease bad been submitted to tbe jury tbe court of its own motion added tbe following three issues :
1. Was tbe paper-writing offered for probate as tbe last will and testament of W. I. Herring, signed and executed according to law?
2. If so, did tbe said Herring have tbe mental capacity to make a will?
3. If so, was tbe execution of said paper-writing procured by undue influence?
To tbe addition of these issues tbe caveators excepted.
It is settled by numerous and uniform decisions that “tbe number and form of issues rest in tbe discretion of tbe court, if every phase of' tbe contention could have been and was presented.” Patterson v. Mills, 121 N. C., 266; Rittenhouse v. R. R., 120 N. C., 544; Humphrey v. Church, 109 N. C., 132; Denmark v. R. R., 107 N. C., 185. In Deaver v. Deaver, 137 N. C., 246, Wallcer, J., thus sums up tbe result of our decisions: “It is not material in what form issues are submitted to tbe jury, provided they are germane to tbe subject of tbe controversy and each party has a fair opportunity to present bis version of tbe faets^and bis view of tbe law, so that tbe case, as to all parties, can be tried on tbe merits. Warehouse Co. v. Ozment, 132 N. C., 839.” Tbis has been followed in numerous cases since, among them Lance v. Rumbough, 150 N. C., 25; Bank v. Insurance Co., id., 775. Tbe issue first submitted is tbe usual one in such cases, but is not required by any statute or rule of practice, and tbe presiding judge was within tbe scope, not only of bis authority, but of bis duty, in submitting tbe additional issues, if be thought it would tend to make easier to tbe jury tbe elucidation of tbe facts. Rev., 614; R. R. v. Stroud, 132 N. C., 416; Springs v. Scott, ib., 551.
It was in evidence that G. E. Komegay and W. D. Raynor *260subscribed their 'names as witnesses in the immediate presence of the testator and of each other, but that he did not sign it in their presence. His Honor properly instructed the jury that it was “Necessary that he should either sign his name in the presence of witnesses or should acknowledge his signature thereto in their presence. If from the evidence in this case you do not find that he signed it or did not acknowledge it in their presence, then you should find that the paper-writing is not the last will and testament of W. I. Herring. It is not necessary, however, that this acknowledgment be made in words. The maker of a will can make an acknowledgment of his signature by acts and conduct as well as by words, and if you find that there was such'acknowledgment, that will be sufficient acknowledgment under the law. It must also be witnessed in the presence of the party making the will, and he must either see the witnesses sign it or he must be in a position to see them sign it, and to see if they are signing the paper-writing that he signed. If you find from the greater weight of the evidence in this case that witnesses were-in his presence, and if you further find that he was in a position that he could see them sign it and know that they were signing the paper-writing which he had signed, that would be a sufficient signing in the presence of the party making the will. They must also sign as witnesses at his request. It is not necessary, however, that he should make the request himself. If he authorizes some one _ else to get witnesses, and ask them to sign, then the party that he sends out will act as agent, and a request made by said person would be the request of the party signing the will.” This is a clear and accurate statement of the law applicable. Burney v. Allen, 125 N. C., 314.
G. E. Kornegay testified that he signed the paper-writing as a witness; that Mr. Isler came to his store and asked him to go to his law office for the purpose of witnessing the will of Mr. W. I. Herring; that he went up to the office, and the other subscribing witness, Mr. Eaynor, Mr. Herring and Mr. Isler, were present; that Mr. Herring acknowledged that he had signed the paper-writing, and he signed it in his presence; that Mr. Herring was just in front of him, across the table, and saw him sign.
Mr. W. D. Eaynor testified that Mr. Isler came to him and asked him to go to his office to witness Mr. W. I. Herring’s will; that he went there and found Mr. G. E. Kornegay there, Mr. Herring and Mr. Isler; that Mr. Herring was sitting in front of him, on the other side of the desk, and saw him when he signed the paper-writing as a witness; that Mr. Herring, *261Mr. Kornegay, Mr. Isler and bimself were all present in the room at the time, but that, so far as he could remember, nothing was said at that time as to what the paper was.
Mr. Isler testified that Mr. Herring came to him to write his will; that he took a memorandum of its provisions; that he wrote it; that Mr. Herring came again and .took the paper-writing with him to examine it; that he afterwards brought it back and he said it was all right; that Mr. Herring asked him to get the witnesses, and he got Mr. Kornegay and Mr. Raynor to come to his office for that purpose; that after they came he said to them, and said to Mr. Herring, “I have brought witnesses to the will,” and that Mr. Herring said, in the presence of Kornegay and Raynor, that it was his will.
His Honor arrayed the contention of both parties and charged the law correctly, as. above stated. The jury found in response to the first and second issues that the paper-writing was signed and executed according to law, and that Herring had mental capacity to make a will. His Honor further instructed the jury that if it should answer these two issues “Yes,” they should answer the third issue “No.” This was correct, for there was no evidence of undue influence in procuring the execution of the will fit to go to the jury. His Honor also correctly told the jury that if they answered the first and second issues “Yes,” to answer the fourth or original issue “Yes,” this being the' result necessarily of the finding upon the other three issues.
The caveators insist strenuously that the court should have given their sixth prayer for instructions: “An acknowledgment, in order to be effective, must be in such a manner as to enable each of the witnesses to hear it, and, moreover, it must be actually heard by each of the witnesses, else it is no acknowledgment as to the one who does not hear it.” The next two exceptions are for a refusal to give two other prayers to same effect, with some variation in the language, but to the same purport, that the acknowledgment must be actually heard by both witnesses.
Our statute makes no such requirement. Rev., 3113. It simply provides that the will must be signed by the testator, or by some one in his presence and by his direction, “and subscribed in his presence by two witnesses at least, no one of whom shall be interested in the devise or bequest of the said estate, except as hereinafter provided.” There is no requirement that the testator shall sign in the presence of the witnesses nor acknowledge it in their presence. As his Honor told the jury, the acknowledgment need not be made in words, but the jury can find that there was an acknowledgment as an infer*262ence from bis acts and words. Mr. Isler testified that be requested tbe witnesses to go to bis office and sign this paper, acting for Mr. Herring, and be was corroborated by both witnesses. If tbe jury believed, this evidence, tbe witnesses signed at tbe request of Mr. Herring and in bis presence. There was not one scintilla of- evidence that another paper bad been surreptitiously substituted for tbe will before it was subscribed by the witnesses, or denying tbe genuineness of Herring’s signature. It was not error to refuse tbe charge'upon a supposition not sustained by any evidence. In re Burns’ Will, 121 N. C., 336.
There are other exceptions, but they require no discussion. In tbe interesting supplementary brief filed by Mr. Rountree be demonstrates by citations from authorities upon tbe civil law and tbe common law, and, also, by reference to tbe Code of Napoleon, that tbe power to devise property by a last will and testament exists only by statute law, which must therefore be strictly followed, and that such right may at any time be modified or abrogated. This Court has heretofore expressed tbe same conclusion, Hodges v. Lipscomb, 128 N. C., 57.
No error.