concurs (concurring and dissenting).
I dissent from the construction given § 9-202, sub. 3, I.C. In the first place, the question decided is not presented or urged by appellant, either by assignment of error or argument. What is said thereon by the majority is pure dictum.
Appellant made an offer of proof “that his mother toid him on many occasions and at different times and places that Herman Schaible was his father”. The offer was rejected. Appellant urges the proof should have been admitted under the pedigree exception to the hearsay rule. This was the question presented and I think correctly decided by the majority.
It is true the objection to the question set out in the majority opinion was taken on the ground the testimony is barred by subsection 3 of § 9-202 I.C., and the objection was sustained ; but, appellant has not assigned that ruling as error and that section of the statute — the dead man’s statute — is not referred to or cited in the brief of either party.
The statute could present no bar to the statements of the deceased mother, because this is not an action upon a claim or demand against her estate.
The record shows respondent objected and urged the bar of the dead man’s statute to the question asked appellant, “Now at that time, 1947, did you have any conversation with Mr. Herman Schaible as to whether or not he was your father?” The objection was argued in the absence of the jury and the court announced that it would be overruled. In the presence of the jury the objection was overruled and the question answered, “I did.” Then the question was asked, “Will you state, as nearly as you rer call, that conversation? A. That he was my father and I would have practically no trouble proving it.” The first question was clearly preliminary and the second was-answered without objection. Having made no objection, appellant does not assign error.
*72Disregarding the record, and assuming an assignment not made, the majority holds that the dead man’s statute does not bar the appellant as a witness, because this is not an action upon a claim or demand against the estate within the meaning of that statute, and that an heir is not barred thereby. To me this is a repeal or modification of the statute by the court without the slightest justification. The dead man’s statute is not a mere rule of procedure, subject to the will of this court. It is a substantive rule of property, designed to protect estates of decedents against those who would take advantage of death to press unsupported claims to their property. The words, “Parties or assignees of parties”, “or persons in whose behalf” are all-inclusive. They allow for no exceptions in the case of heirs, or any other class of persons making claim to the estate, or any interest therein. The proposition that “The right here asserted could not be enforced against the deceased in his lifetime”, has nothing to do with the construction of the statute here involved. That is a consideration involved in determining what is a claim against an estate within the meaning of §§ 15-601 to 15-604 I.C., requiring the filing of claims wni' the executor or administrator. Ashbauth v. Davis, 71 Idaho 150, 227 P.2d 954, 32 A.L.R. 2d 361; Ferrell v. McVey, 71 Idaho 339, 232 P.2d 134. A promise, upon sufficient consideration, to make, or refrain from making, a will, is generally upheld by the courts, but is one which could not be enforced in the lifetime of the deceased. Ash-bauth v. Davis, supra. Appellant is within the inhibition of the statute. Burns v. Skogstad, 69 Idaho 227, 206 P.2d 765; Johnson v. Flatness, 70 Idaho 37, 211 P.2d 769; Ferrell v. McVey, supra; 58 Am.Jur., Witnesses, §§ 237, 279, 281, 282, and 306; 70 C.J., Witnesses, §§ 290 and 305.
On other issues I concur with the majority.