The battleground of this case in the trial below was not the first issue; it was the second and third issues. All the evidence tended to show that the paper writing was executed in conformity with the legal requirements for the execution of a valid will. We must assume, therefore, that the jury’s negative answer to the first issue indicated either confusion as to the law or disbelief of some of the uncontradicted evidence.
With reference to the signature of Mr. Matthew London Long, one of the alternative hypotheses upon which the jury was instructed to answer the first issue “Yes” was a finding “that Matthew London Long signed the paper writing offered by the propounder as a last will and testament.” Since there was no evidence that Mr. Long actually wrote his own name, it is possible that this instruction, without more, confused the jury. Further explanation of the right of a testator to adopt as his own a signature written by another at his request and in his presence, would have been in order.
However, be that as it may, the judge told the jury that if the signatures of the witnesses “were subscribed thereto at the request of Matthew .Long, and in his presence and in the presence of each other” (Emphasis added) they would answer the first issue “Yes”; *601otherwise, “No.” This was error. Witnesses are not required to sign in the presence of each other; only in the presence of the testator. G.S. 31-3.3 (d).
Upon the authority of In re Will of Etheridge, supra, a new trial is required even though all the evidence tended to show that the witnesses did sign in the presence of each other. The Etheridge case presented a situation strikingly similar to the instant case. There, as here, all the evidence tended to show the formal execution of the instrument in strict conformity with legal requirements for a valid will. The judge instructed the jury that if they believed the evidence and found the facts to be as all the evidence tended to show that they would answer the first issue “Yes”. The jury answered it “No.” However, the judge also instructed the jury that the law required the testator to sign the will in the presence of the witnesses. Justice Seawell, speaking for the Court said:
“While the judge directed the jury to answer the issue as to the execution of the will ‘yes/ — predicated on their belief of the evidence, — this did not withdraw from the jury the erroneous statement of the legal requirements under G.S. 31-3. And it may have entered into their consideration as the basis of their disbelief. As to this we cannot, of course, say; but the evidence should have been submitted to the jury with an exact statement of the law relating to the subject, particularly since the formal execution of the will was a matter in issue.”
The propounder is entitled to a trial de novo, and it is so ordered.
New trial.