dissenting.
After summary judgment was granted instead of trial, this court is presented with a factual review to re-examine whether a conflict issue existed. Intrinsic to me is the concern which has been in part motivated by decisions of the United States Supreme Court, with which I do not agree, to move more case dispositions from live trial to papered presentation. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) and Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
In this particularized factual case of a childless marriage, a large estate and reciprocal wills, conflict in concept reappears with summary judgment. Clearly, Meritt Barton and Caroline Barton, in joint endeavor in their attorney’s office on August 23, 1977, intended to execute reciprocal wills so that each of them, with separate estates, would achieve a desired family division without regard for the happenstance of the first death between them.
Contorted in this litigation is whether their conduct was mutually considered and factually adopted for action as an agreement or, conversely, that Meritt Barton did not enter into any understanding as a joint plan for the future and was only humoring Caroline Barton until she signed her will *497with mutuality to continue only until her then anticipated death. Normally, explicit notes of the scrivener-lawyer or explicit provisions in the will documents would have concluded the question one way or another. Unfortunately, that is neither the documentary result nor the factual record now presented for summary judgment. Maybe the questions were not asked; perhaps the answers were not given at will drafting and execution sessions. In any event, the instruments which were signed neither proved nor disproved a mutually adopted understanding between the husband and wife so that the testamentary beneficiaries and devisees were finitely established without difference as to who between them might first die.
What did happen is that Caroline Barton died and Meritt Barton changed his will to disinherit her relative after receiving her estate.
The circumstances of will execution and the identity of the results provided in consideration of their family status is evidence. I reject a legal conclusion from that evidence that Meritt Barton in effect did not intend to agree. Nothing as a matter of law convinces me that it was “King’s-X, I did not mean it.” This abbreviated factual record and totally inconclusive testimony from the third participant, the attorney who prepared the wills, does convince me that a proper trial, jury or bench, should be required for a factual decision, and the case should not be decided by an adjudication that no issue of fact exists. See Cordova v. Gosar, 719 P.2d 625, 636 (Wyo.1986). It is not, in my opinion, possible to accurately conclude that: (1) at least something less than a scintilla of evidence existed of Meritt and Caroline Barton’s mutual agreement to be found from what they actually did; or (2) that reasonable minds cannot differ as to factual significance of what the parties actually did “mutually.” Weaver v. Blue Cross-Blue Shield of Wyoming, 609 P.2d 984 (Wyo.1980). The legal standard that “[t]he motion for summary judgment should be sustained in the absence of a real and material fact issue considering movant’s burden, respondent’s right to the benefit of all favorable inferences and any reasonable doubt, with credibility questions to be resolved by trial,” is not met by the factual ingredients of this reciprocal will case for proper disposition by summary non-trial adjudication. Cordova, 719 P.2d at 640.
Consequently, I dissent.