Whelan v. Burris

In this case two questions of fact were submitted to the jury. The first was whether the testator was physically able to sign his name at the time of the execution of his will. This question was material because the testator’s signature to the will was by mark and a subscription by mark is by statute (NDRC 1-0149, subd. 4) permissible only when the signer is unable to write. The second question was whether the will was invalid because of undue influence.

Upon the first appeal of this case we held that the evidence established that the will had been validly executed as a matter of law but that…