(dissenting):
The essential factual picture is sufficiently set forth in the main opinion; and the same is true of certain applicable principles of law. With appropriate deference to any contrary view, it is my judgment that a correct application of those principles to the facts requires the affirmation of the findings and judgment of the trial court.
It is important to realize that if we look through the forms and nomenclature, this case is seen to be a contest as to whether Bradley L. Hasper will get the entire estate by reason of the 1976 will or H. Wayne Wadsworth will get one-half of the estate by reason of an executed contract, as recited in the 1974 will.
It also should be kept firmly in mind that it was the trial court’s prerogative to find the facts on the basis of the evidence and reasonable inferences to be drawn therefrom; and that on appeal, it is this Court’s duty to respect that prerogative, and to assume that he believed those aspects of the evidence and that he drew the inferences therefrom which support his findings and judgment.1
The main opinion correctly states that:
“It is well settled that a will may contain a contract, and thus one document may serve in a dual capacity. Although a will is revocable, a contract within the will is irrevocable, and such contract can be enforced even though the will containing it is revoked..."
I have no disagreement with the proposition that the terms of the contract should be so clear that neither party could misunderstand them.2 The statement of the utmost significance in this case is that quoted from paragraph IV of the will that:
“I devise and bequeath one-half [of my estate] in consideration of his friendship *341and personal service to me over the past several years.”
This, as I see it, is a simple, ciear and definite statement in which I perceive neither uncertainty nor ambiguity. Therefore, it fully meets the above-stated requirement.
Though I see no ambiguity, if it be assumed that there is one, the trial court could properly consider other facts and circumstances. In doing so, he could see, and appears to have seen, the situation as supporting his conclusion that there was an executed contract.
A significant fact (as recited in the main opinion) is that for six years after Dr. Orris left Utah, Mr. Wadsworth had continued to perform legal services relating to the property and business Dr. Orris had in Utah. From the recital in paragraph IV above quoted, and from the fact that in the will dated June 11,1976, Dr. Orris recited, in his own handwriting, that Mr. Wadsworth should be paid “an appropriate amount, not to exceed $10,000 for legal services he has rendered me,” it is shown without question that there existed an obligation, which Dr. Orris recognized, to pay Mr. Wadsworth a substantial amount of money.
In awareness of this obligation on the part of both men, Mr. Wadsworth prepared the 1974 will, which contained what was in effect a plan by which Mr. Wadsworth offered to settle accounts between them. At that time, Mr. Wadsworth had no way of knowing that Dr. Orris would meet an early and unfortunate death. Instead of requiring payment then, he indicated a willingness to abide two uncertainties: that of how long Dr. Orris would live, and whether he would have any estate at all when he died. The proposed will contained the plain and unequivocal commitment that upon the ultimate eventuality of his death, one-half of whatever estate he should then possess was promised to be paid to Mr. Wadsworth.
The will was sent to Dr. Orris in California. He was an intelligent, well-educated man who had practiced his profession for many years. He had plenty of time, and it appears that he took plenty of time, to deliberate upon the execution of the will. After 27 days, he arranged for its formal execution in the presence of others and returned it to Utah.
In his attempt to overturn the judgment, Mr. Hasper advances arguments as to certain legal propositions which he urges should upset the trial court’s findings. The first is that the court considered evidence which it should not have done because of the so-called “dead man’s statute.”3 It provides that the following persons are disqualified from testifying:
A party to any civil action ... when the adverse party defends as the executor of any deceased person ... as to any statement by or transaction with such deceased ... person, or matter of fact whatever, which must have been equally within the knowledge of both the witness and such ... deceased person ....
Since the statute is one which provides for the exclusion of evidence which otherwise may be helpful in ascertaining the truth, it should be construed and applied strictly.4
The introduction of the deposition of Mr. Hasper was in no way prohibited by that statute. He is not asserting a claim in which he is adversary to the estate. On the contrary, as the executor, his interest is identified with the estate and he is defending the estate against the claim of Wads-worth.5
*342Appellant also contends that there was error in regard to the application of that statute to the testimony of Mr. Wadsworth. His counsel readily admitted and stated to the court that Mr. Wadsworth could not testify as to any conversations with or transactions with Dr. Orris and his testimony was carefully so limited. He testified only to the fact that he had done work in the absence of Dr. Orris. In fact, in appellant’s own reply brief, he states that “the subject matter of those conversations was not given, as both appellant and respondent conceded that to do so would be a clear violation of the dead man’s statute.”
However, under the strict construction of the “dead man’s statute,” a “transaction” between the claimant and the deceased does not preclude a description of “services” rendered for the deceased, e. g., for nursing, medical, hospital, or even for other services, such as a plumber or a carpenter, simply describing the actual services that had been rendered. The sound view, which finds support in the adjudications under such statutes, is that they do not preclude the testimony of a claimant for services rendered in the absence of the deceased and without his immediate and personal participation. This is so because the deceased, if living, could not contradict the fact that the claimant rendered such services.6
The record discloses that the trial court carefully and correctly protected the interests of the estate and of the parties in his rulings on evidence. Moreover, it is further to be observed that, whatever else may be said about the evidence, there was no prejudice to the estate or to Mr. Hasper. This because the controlling issue in dispute is as to the validity of the contractual obligation to Mr. Wadsworth. The facts essential to its validity are clearly and incontestably shown by facts solemnly attested by Dr.
Orris in his will by acknowledging his debt to Wadsworth and his commitment as to its payment.
The question as to possible undue influence upon Dr. Orris by Mr. Wadsworth because of the attorney-client relationship deserves some attention.7 The justification for such a presumption arises from the commonly known natural propensity of persons to act in their own interest. However, the fact should not be lost sight of that its real purpose is to assist in arriving at a rational and just conclusion. As with most rules, it is a good servant, but a poor master. Wherefore, it should not be indulged with any such rigidity as to thwart that purpose. Accordingly, such a presumption is rebut-table; and whatever persuasive force it has is to be weighed with all of the attendant facts and circumstances.
In this instance, there are various facts which may well have been persuasive to the trial court. An important one is the fact that at the time the 1974 will was executed, Dr. Orris had long since moved to California, so the parties were not together and there was no opportunity for Mr. Wads-worth to exercise any degree of duress or undue influence upon Dr. Orris. He was completely free to accept or reject the proposition contained in that will and chose to accept it.
The trial court correctly took the view that once it was established that Dr. Orris had made the agreement contained in the 1974 will, and thus become bound by it, any unilateral actions by him thereafter, for whatever purpose and by whatever persuasion, could not disavow nor avoid that commitment.8
If the determinations made by the trial court are accorded the presumptions of ver*343ity to which they are entitled,9 there is a fair and reasonable basis in the record to support the findings and judgment. I would affirm.
MAUGHAN, J., concurs in the dissent of CROCKETT, C. J.. Carnesecca v. Carnesecca, Utah, 572 P.2d 708 (1977).
. See footnote 2, main opinion.
. Sec. 78-24-2, U.C.A.1953.
. Maxfield, et al. v. Sainsbury, et al., 110 Utah 280, 172 P.2d 122 (1946); Morrison v. Walker Bank & Trust Co., 11 Utah 2d 416, 360 P.2d 1015 (1961).
. In our case of Maxfield v. Sainsbury, supra, note 5, it was pointed out that the statute did not disqualify as a witness a party to the suit whose interest is favorable to and identical with that of the estate itself. Therefore, it follows that the executor himself would not be disqualified. The Court further stated that the Legislature intended by the term “adverse party” to disqualify only those witnesses who have a direct interest in the success of that particular claim adverse to the interest of the estate. See also, Carnesecca v. Carnesecca, supra, note 1.
. Stayton v. Stayton 148 Kan. 172, 81 P.2d 1 (1938); Boettcher v. Busse, 45 Wash.2d 333, 277 P.2d 368 (1954); King v. Clodfelter, 10 Wash.App. 514, 518 P.2d 206 (1974); In re Mueller’s Estate, 166 Neb. 376, 89 N.W.2d 137 (1958); Burns v. Caughman, 255 S.C. 199, 178 S.E.2d 151 (1970); Jackson v. Cont. Bank & Trust Co., 443 F.2d 1344 (10th Cir. 1971).
. See In re Swan’s Estate, 4 Utah 2d 277, 293 P.2d 682 (1956).
. Malstrom v. Consolidated Theatres, 4 Utah 2d 181, 290 P.2d 689 (1955).
. Charlton v. Hackett, 11 Utah 2d 389, 360 P.2d 176 (1961).