(dissenting) :
We dissent.
Plaintiff’s claim for relief in the instant case is bottomed on establishing a valid and enforceable oral agreement between plaintiff and decedent in July 1942, whereby each agreed to make a will leaving his interest in the partnership property to the other. The existence of such an oral agreement rests entirely on the uncorroborated testimony of plaintiff, the survivor, concerning a conversation he had with decedent almost thirty *459years previously. In our view, plaintiff is an incompetent witness to so testify, such testimony is inadmissible in evidence under Montana’s deadman statute [section 93-701-3(3), R.C.M. 1947], and plaintiff’s claim fails.
This statute provides in pertinent part:
“Persons who cannot he witnesses. The following persons cannot be witnesses:
[£* * *
“3. Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted against an executor or administrator upon a claim or demand against the estate of a deceased person, as to the facts of direct transactions or oral communications between the proposed witness and the deceased, excepting when the executor or administrator first introduces evidence thereof, or when it appears to the court that, without the testimony of the witness, injustice will be done. * * *”
Previous decisions of this Court indicate that the purpose of the deadman’s statute is twofold: (1) to prevent the survivor from gaining an undue advantage over the deceased’s estate, and (2) to remove the temptation for the commission of perjury by the survivor giving testimony that in all probability cannot be denied by any living person. Novak v. Novak, 141 Mont. 312, 316, 377 P.2d 367; Johnson v. Mommoth Lode, 136 Mont. 420, 348 P.2d 267; Cox v. Williamson, 124 Mont. 512, 227 P.2d 614; Leffek v. Luedeman, 95 Mont. 457, 27 P.2d 511.
In conformity with such purpose, this Court has required that before a witness, who is declared to be incompetent by this statute, will be allowed to testify to prevent an injustice, a foundation must be laid by the introduction of other evidence which indicates that in all probability the proponent has a meritorious cause of action. Johnson v. Mommoth Lode, supra, and cases cited therein; Potlatch Oil & Refining Co. v. Ohio Oil Co., CCA 9, 199 F.2d 766, cert. den. 345 U.S. 926, 73 S.Ct. 786, *46097 L.Ed 1357; Phellps v. Union Central Life Ins. Co., 105 Mont. 195, 71 P.2d 887.
In onr view, this foundation evidence must indicate the probability of the existence of such oral agreement, and not simply establish facts equally consistent with its existence or explainable on unrelated grounds. This requirement is particularly important where, as here, the terms of the alleged oral agreement are directly contrary to the terms of the three pertinent written agreements admitted in evidence — the partnership agreement, the original escrow agreement, and the modified escrow agreement. It has been so held by this Court in previous cases involving alleged oral agreements to make a will, Langston v. Currie, 95 Mont. 57, 26 P.2d 160; Cox v. Williamson, supra, and particularly in cases where the oral agreement modifies or conflicts with a written contract. Bauer v. Monroe, 117 Mont. 306, 158 P.2d 485; Davison v. Casebolt, 154 Mont. 125, 461 P.2d 2.
In the instant case there is simply no evidence of the existence of an oral contract to devise and bequeath except for the testimony of plaintiff, the surviving partner. The making of a will by plaintiff no more proves the existence of an oral contract by decedent to execute a will in plaintiff’s favor, than the execution of any contract or document by one person creates a reciprocal obligation on the part of the obligee. Nor does any of the other evidence listed in the majority opinion prove an oral contract by decedent to devise and bequeath his property to plaintiff. The lapse of some 24 years between 1942 and decedent’s death in 1968, without enforcement or mention of the alleged oral contract by plaintiff adds nothing to the required foundation.
Absent any foundation therefor, we would hold that the district court abused its discretion in admitting the testimony of plaintiff under the deadman’s statute, and accordingly that plaintiff’s claim must fail.