partially dissenting and specially concurring.
The rationale of the court in its opinion reversing summary judgment in this case, is that the prohibition of the dead man’s statute preventing entry of judgment upon uncorroborated testimony is available to the appellee at trial but not at the summary judgment stage of the proceeding. Thus, the court states in its opinion that:
The requirement of corroboration of evidence against a party incapable of testifying under the statute should not come into play at the summary judgment stage.
Maj. op. at 1180. Why should something which is purely a matter of law, W.S. 1-12-102, the dead man’s statute, not be available at the summary judgment stage? The court makes this astonishing statement without citation of supporting authority. The statement is squarely contrary to W.R.C.P. 56⅜ which provides in paragraph (c) as follows:
The judgment * * * shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. [emphasis added]
I would hold that the parties are entitled to have their case decided at the summary judgment stage on all of the law then existing.
The court then continues as follows:
Offering no evidence to dispute Drake’s claim or show that the moneys were anything other than loans, appel-lees Winkler and Pilot Butte allege only that Drake cannot corroborate his claim.
Maj. op. at 1180. First, appellee is not required to offer evidence that the monies were “other than loans.” Appellee is only required to set forth the facts, which are that money was transferred with nothing to show the transfer was either a loan or a gift. Second, we know that Drake cannot defeat summary judgment by claiming that the monies transferred were loans. A claim made in pleading will not defeat summary judgment. Simply stated, a claim is not enough. Referring again to W.R.C.P. 56(e), we find that
[supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence * * *. [emphasis added]
Neither party can allege, nor did they allege, facts that would be admissible in evidence to corroborate Drake’s claim. Nevertheless, the court proposes to reverse summary judgment and force the parties to trial. At trial what surely would happen is that Drake would begin to testify about an oral prenuptial agreement and an oral loan repayment agreement with deceased appel-lee Stagner. Appellees would object to the testimony as inadmissible under the dead man’s statute. The dead man’s statute, W.S. 1-12-102, provides:
In an action or suit by or against a person who from any cause is incapable of testifying, or by or against a trustee, executor, administrator, heir or other representative of the person incapable of testifying, no judgment or decree founded on uncorroborated testimony shall be rendered in favor of a party whose interests are adverse to the person incapable of testifying or his trustee, executor, administrator, heir or other representative. In any such action or suit, if the adverse party testifies, all entries, memorandum and declarations by the party incapable of testifying made while he was capable, relevant to the matter in issue, may be received in evidence.
The objection should be sustained; but if the testimony were allowed, the case would still be over, for it would be uncorroborated testimony against a person incapable of testifying (in this case, Stagner who is deceased). It would be over at trial, but it should be over now at summary stage, for the parties do not even contend that there *1182is a dispute in the material facts or in the law.
The undisputed facts are that monies of appellant were transferred to appellee Stagner and appellee Pilot Butte, a corporation. There was $10,750 transferred to appellee Stagner and $12,273 transferred to Pilot Butte. There is no other writing than the transfers themselves of the money. The money transfers could be a gift, or they could be a loan. Drake and Stag-ner were living together and planning to be married at the time. Stagner died May 20, 1990. Appellant proposes to establish, by testimony, that there was an oral prenuptial agreement and an oral agreement that the monies transferred were loans to be repaid. The dead man’s statute prohibits corroboration in this fashion. Summary judgment should be affirmed.
Pilot Butte, a corporation finds itself in a different posture. It is not a “person” incapable of testifying under the dead man’s statute. At this stage of the proceeding, it is not entitled to the prohibition of the dead man’s statute. Whether it may later appear that the dead man’s statute comes into play because the corporate entity may be ignored or that the corporation is or is not a validly organized, existing and viable corporate entity, we cannot say. At this stage, we' cannot say as a matter of fact or of law that summary judgment in favor of Pilot Butte should have been entered.
Therefore, I would affirm the summary judgment in favor of appellee Stagner and reverse the summary judgment in favor of Pilot Butte.