                                       No. 12077

            I N THE SUPREME COURT O T E STATE OF M N A A
                                   F H            OTN

                                         1972



YENS HANSEN,

                                P l a i n t i f f and Respondent,



LEE KIERNAN, A d m i n i s t r a t o r o f t h e E s t a t e o f
JOSEPH PATRICK KIERNAN, deceased, e t a l e ,

                                Defendants and Appellants.



Appeal from:         D i s t r i c t Court of t h e Third J u d i c i a l D i s t r i c t ,
                     Honorable S i d G. Stewart, Judge p r e s i d i n g .

Counsel o f Record :

        For A p p e l l a n t s :

                Tipp, Haven and B r a u l t , Missoula, Montana.
                Raymond W e B r a u l t argued, Missoula, Montana.

        For Respondent :

                William R e Taylor argued, Deer Lodge, Montana.
                James J. Masar, Deer Lodge, Montana.



                                                  Submitted:        A p r i l 21, 1972

                                                    Decided:       JUL f 1 1914
F i l e d : JUL   1.1 lm
M r . J u s t i c e John Conway H a r r i s o n d e l i v e r e d t h e Opinion of t h e
Court.


             This i s an a p p e a l from a judgment and d e c r e e of t h e d i s t r i c t

c o u r c of t h e t h i r d j u d i c i a l d i s t r i c t , Powell County, s i t t i n g w i t h o u t

a j u r y , o r d e r i n g s p e c i f i c performance of an o r a l agreement e n t e r e d
i n t o by p l a i n t i f f Yens Hansen and decedent Joseph P a t r i c k Kiernan.
The c o u r t f u r t h e r o r d e r e d a l l monies t h a t have accrued and w i l l
become due t o t h e b e n e f i t of d e c e d e n t ' s e s t a t e a s a r e s u l t of t h e

former p a r t n e r s h i p t o be p a i d t o p l a i n t i f f .
             By h i s amended c o m p l a i n t , p l a i n t i f f asked (1) f o r a de-

c l a r a t i o n and a d j u d i c a t i o n of t h e r i g h t s of p l a i n t i f f and t h e

e s t a t e of Joseph Kiernan, deceased, t o monies due under a c o n t r a c t
f o r deed agreement; ( 2 ) t h a t t h e d i s t r i c t c o u r t e n t e r judgment
e s t a b l i s h i n g an o r a l c o n t r a c t between p l a i n t i f f and d e c e d e n t ; and

( 3 ) a d e c r e e t h a t a s a r e s u l t of t h e c o n t r a c t p l a i n t i f f i s e n t i t l e d
t o a l l monies t h a t have accrued and w i l l become due under t h e con-

t r a c t f o r deed.
             Defendant i n t h e i n s t a n t s u i t i s t h e a d m i n i s t r a t o r of t h e

e s t a t e of Joseph P a t r i c k Kiernan, Lee Kiernan.                       It i s d e f e n d a n t ' s

p o s i t i o n t h a t a p a r t n e r s h i p e x i s t e d between p l a i n t i f f and decedent
b u t t h a t t h e p a r t n e r s h i p t e r m i n a t e d w i t h K i e r n a n ' s d e a t h and t h e r e

i s now due h i s e s t a t e an a c c o u n t i n g of t h e p a r t n e r s h i p a f f a i r s .
F u r t h e r , a l l testimony r e l a t i n g t o an a l l e g e d o r a l agreement between
p l a i n t i f f and decedent t o e x e c u t e mutual w i l l s was i n a d m i s s i b l e
under t h e s o - c a l l e d "dead man's" s t a t u t e , s e c t i o n 93-701-3,                   R.C.M.

1947.
             The u n c o n t e s t e d f a c t s i n d i c a t e t h a t i n 1932 Joseph Kiernan,
a s i n g l e man 43 y e a r s of a g e , e n t e r e d i n t o an o r a l p a r t n e r s h i p
agreement w i t h Yens Hansen, a s i n g l e man 28 y p a r s of age.                              The

p a r t n e r s h i p agreement provided t h a t Hansen and Kiernan would pur-
chase a 331 a c r e ranch known a s t h e " ~ a c k l i nPlace" n e a r E l l i s t o n ,
Montana, f o r t h e purpose of engaging i n t h e r a n c h i n g and c a t t l e
r a i s i n g business.           The p a r t n e r s h i p f l o u r i s h e d and i n 1940 t h e y
purchased a d d i t i o n a l p r o p e r t y known a s t h e            at       Creek Place"
c o n s i s t i n g of approximately 419 a c r e s .
              A t v a r i o u s times d u r i n g t h e p e r i o d 1932          -   1941, both
Hansen and Kiernan s0ugh.t o u t s i d e employment t o e a r n c a s h and each
contributed h i s earnings t o t h e partnership.                           While i t may seem
unusual t h a t such an u n d e r t a k i n g was only supported by an o r a l
agreement, i t should be noted. t h a t Hansen and Kiernan had known
each o t h e r s i n c e 1914, and Kiernan had r e s i d e d a t ans sen's grand-
p a r e n t s ' ranch f o r a number of y e a r s p r e v i o u s t o 1932.                 There i s
e v e r y i n d i c a t i o n t h a t t h e y were n o t only good f r i e n d s , b u t were
a l s o amiable and d i l i g e n t b u s i n e s s p a r t n e r s .
              O January 23, 1941, t h e p a r t n e r s executed formal w r i t t e n
               n
a r t i c l e s of c o p a r t n e r s h i p .   The a r t i c l e s provided, among o t h e r
t h i n g s , t h a t t h e y would:
              'I*        *
                         become c o p a r t n e r s i n t h e r a n c h i n g and
              farming b u s i n e s s under and by t h e name, f i r m and
              s t y l e of 'Kiernan & Hansen. ' 9         :     *
                                                                %


              "That t h e term of s a i d p a r t n e r s h i p 9 9
                                                                : :      shall*
              end whenever t h e p a r t i e s may t e r m i n a t e s a i d p a r t n e r -
              s h i p by mutual consent w i t h o r w i t h o u t a w r i t t e n
              agreement of d i s s o l u t i o n .  ;k  *
              "At t h e t e r m i n a t i o n of t h i s p a r t n e r s h i p , by e x p i r a -
              t i o n of t h e term o r by r e a s o n of any o t h e r c a u s e
              d.      -L
                   -1-
                          t h e d e b t s of t h e p a r t n e r s h i p s h a l l be d i s -
              charged; and a l l money o r o t h e r a s s e t s of t h e p a r t -
              n e r s h i p then remaining, s h a l l be d i v i d e d between
              t h e p a r t i e s , s h a r e and s h a r e a l i k e ik 9 9:. I '
                                                                            :

              I n 1942 Hansen was d r a f t e d i n t o t h e United S t a t e s army
a t t h e age of 38.              Before l e a v i n g f o r a c t i v e duty Hansen, r e -
cognizing t h e u n c e r t a i n t i e s of wartime m i l i t a r y s e r v i c e , executed
a w i l l whereby he bequeathed and d e v i s e d h i s p e r s o n a l and r e a l
p r o p e r t y t o Joseph IGernan, l e a v i n g o n l y h i s "good w i l l 1 ' t o h i s
heirs-at-law.                The w i l l was mailed t o Kiernan and d e p o s i t e d by
him i n h i s s a f e t y d e p o s i t box.        A t a l l times a f t e r r e c e i v i n g     an sen's
w i l . 1 , Kiernan had access and control over the will.

          At trial, over the objection of defendant's counsel, Yens
Yanseii testified that in 1942 due to his impending military ser-
vice he and Kiernan entered into an oral agreement to execute mutual
. ~ reciprocal wills whereby each of them would give, devise, and
    r
bequeath to the other all of his right, title and interest in all
of their real and personal property except a certain homestead be-

longing to Kiernan.    He testified that pursuant to such agreement
h e executed the aforementioned will, thus fully performing his part

oZ   the agreement.
          Plaintiff further testified that during the 33 months he
spent on active duty Kiernan continued to operate the partnership;
that he sent home to Kiernan the sum of $800 to be expended for the
ranching partnership; and, that upon his discharge he contributed
an additional $800 to the partnership.
          In 1945 the partners purchased additional propercy known
as the "~onovanPlace" consisting of approximately 360 acres.       In
1960, they purchased another ranch consisting of approximately 800
acres.    In 1960 Kiernan became afflicted with arthritis which re-
quired him to use a cane and eventually crutches in order to get
around.   This so restricted Kiernan's activities that the partners
agreed to sell their partnership and, in effect, retire.
          In 1966 the partners entered into an agreement with two
prospective purchasers for the sale and purchase of all of the
real and personal property of the partnership.       The partnership
was sold under a contract for deed agreement the terms of which
provided for a down payment and a balance due of $85,200 to be
paid in ten equal annual installments, the first due on November
15, 1967.
          An escrow agreement, warranty deed, abstract of title and
insurance policies were held in escrow by the Deer Lodge Bank &
Trust Company.    An escrow receipt was issued to the parties which
recited the escrow agent would:




the survivor of us   +i
        "Credit payments to Sellers, by escrow check
        made payable to both sellersf1.
        Hansen testified that in the fall of 1966 he and Kiernan
made a "special trip down here to the bank in Deer Lodge on account
of that" escrow receipt. ftik 9c 9 it didn't leave any provision for
                          * *. "

of the escrow receipt changed:
                                 ;

                                   He testified he and Kiernan explained
to the bank cashier (since deceased) that they wanted the wording


        " * 9 so that if anything happened to either
         2   ;
        one or the other of us, that the money would
        automatically go to the other one *


interlineation to read:
                                              +.
                                               ;"

As a result of this meeting, the escrow receipt was modified by


        "Credit payments to Sellers, checking account # 14-509f'.
This change was signed by Hansen and initialed by Kiernan.
        Checking account #14-509 had been used by the partners
during the existence of their partnership.
right to draw on this account.
                                                  Each partner had the
                                      After the sale of the partnership
assets, Hansen and Kiernan continued to use this account for their
personal use.
        Following the sale of the partnership assets Hansen and
Kiernan continued their association and friendship.        They took
motor trips together to Alaska and California; they purchased a
residence in Missoula in joint tenancy with the right of survivor-
ship; they had two savings accounts,both in joint tenancy; and they
purchased corporate stock also in joint tenancy.
        On April 8, 1968, Joseph Kiernan passed away.        No will was
ever located.    Plaintiff brought the instant action for specific
performance of the oral agreement entered into between himself and
Kiernan in 1942 to execute mutual or reciprocal wills.        Here, the
problem is to determine who is entitled to the balance of the
payments due under the contract for deed agreement paid after
~iernan'sdeath and those still to be paid---Hansen or ~iernan's
heirs under the intestacy laws?
        The trial court held that there had existed an oral agree-
nent between Hansen and Kiernan to execute mutual wills; that
Hansen had performed his part of the agreement; that Kiernan had
failed and neglected to perform his part of the agreement; and,
therefore, specific performance of the agreement by the adminis-
trator was ordered.
        Defendant raises eleven issues for review on appeal which
we believe can be more succinctly stated as:
        1.   Whether the trial court erred in refusing to hear
defendant's preliminary motion to strike because of a local court
rule requiring the filing of briefs with such preliminary motions.
        2. Whether testimony relating to conversations and agree-
ments between the plaintiff and decedent were properly admitted
under the "dead man 1 sI' statute, section 93-701-3, R.C.M. 1947.
        3.   Whether defendant's post-trial motion to dismiss
should have been granted, due to the running of the statute of
limitations.
        4. Whether plaintiff was guilty of laches.
        5.   Whether the attempt to enforce the oral agreement
varied the terms of the written articles of copartnership.
        6. Whether the trial court ruled specifically on the
objections raised at trial.
        Issue 1. We find that prior to trial defendant had properly
filed and noticed a motion to strike certain portions of plaintiff's
amended complaint.    On the date set for hearing of the motion the
trial judge summarily denied the motion, because of defendant's
failure to file a brief in support of the motion in accordance
with a local court rule.
        While defendant has raised this issue on appeal, it has
not been argued either in defendant's brief or during oral argument
before this Court.    We can only surmise that this specification
of error has been abandoned and we will not consider it further,
except to say that such rules of practice may be adopted and
enforced by the district courts in accordance with section 93-502,
R.C.M. 1947, and Rule 83, M.R.Civ.P.
        Issue 2.     Section 93-701-3, R.C.M. 1947, provides that 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 communica-
        tions between the proposed witness and the deceased,
        excepting when the executor or administrator first



        The purpose of this statute is twofold: (1) it prevents
the living party, by reason of the death of his adversary, from
gaining an undue advantage over the administrator, and (2) it
removes the temptation for the commission of perjury.      Leffek
v. Luedeman, 95 Mont. 457, 463, 27 P.2d 511; Johnson v. Mommoth
Lode, 136 Mont. 420, 422, 423, 348 P.2d 267; Novak v. Novak, 141
Mont. 312, 316, 377 P.2d 368.
        The statute, section 93-701-3(3),   allows two exceptions
to the prohibition of a surviving party acting as a witness in an
action for a claim or demand against an estate.    The first is when
the executor or administrator first introduces evidence of such
a claim or demand.    We are not concered here with this exception.
However, the second exception provides that the surviving party
may be a witness I Iwhen it appears to the court that, without the
testimony of the witness, injustice will be done. I I   We must now
determine if the trial court abused its discretion under this
second exception.
           In Johnson v. Mommoth Lode, 136 Mont. 420, 423, 348 P.2d
267, this Court said:
           '
           I
           f
           :  9
              :   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 evi-
           dence, which shows that in all probability the
           proponent has a meritorious cause of action. It
           (Emphasis supplied)
         What then is the "other evidence" that tends to show that
plaintiff's claim here is meritorious?            (1) There is the will
executed by Yens Hansen in 1942, which bequeaths and devises all
of his real and personal property to Kiernan.            (2)   There is the
testimony of Katie Hansen, plaintiff's sister, who stated that she
had known Joseph Kiernan all of her life and that in the fall of
1966, I(iernan and plaintiff had had dinner with her after their
trip to the Deer Lodge Bank & Trust Company to change the escrow
receipt.          She testified:
            - well, I remember that Joe [Kiernan] made
           I II   -1-
                   4b


           the remark that everything was taken care of---
        that they had been to the bank, and that the
        papers were all in order, so that if anything
        happened to either of them, why it was a right
        of survivorship, and that if one of them would
        pass away, the other one would get it 7k ik *. 11
(3)   There are the two savings accounts in Hansen's and Kiernan's
names as joint tenants with right of survivorship.             ( ) There
                                                                4
are the shares of corporate stock also held in joint tenancy with
right of survivorship..            (5) There was a purchase of a residence
in Missoula, again with joint tenancy with right of survivorship.
(6) There is the escrow receipt which shows that a change to the
document was made.          (7) There was an undisputed lifelong associa-
tion between Hansen and Kiernan without any indication whatsoever
that there was ever any discord or mistrust between them.             (8) There
is evidence that          an sen's will was mailed to Kiernan in 1942, and
held by Kiernan in his safety deposit box, (9) There is ample
evidence of a successful partnership that existed between these two
men under both an oral agreement and written articles of co-
partnership.              Finally, after the sale of the partnership, Hansen
and Kiernan continued their association by traveling together,
living together and looking after each other until ~iernan'sdeath.
           Considering all of the "other evidence" as a whole, we
cannot say that plaintiff failed to lay a sufficient foundation
for the admission of his testimony relative to an oral agreement,.
entered into between himself and Kiernan to execute mutual wills.
Nor will we reverse without a positive showing that the district
court abused its discretion.                This Court said in Novak v. Novak,
141 Mont. 312, 316, 377 P.2d 368:
           I      it [the court] had the advantage of
                -1,
                4b    ;
                      k
           observing the witnesses during their testi-
           mony and was in a better position than this
           court to determine whether or not injustice
           would result if the plaintiff were not per-
           mitted to testify. "
           Issue 3.          Defendant alleges his post-trial motion to dismiss
should have been granted due to the running of the statute of limi-
tations.       He argues that if there ever was an agreement to execute
mutual wills, that such an agreement was an oral agreement entered
into in 1942, and is now barred by sections 93-2601 and 93-2604,
R.C.M. 1947.              In support defendant cites Pincus v. Davis, 95 Mont.
375, 26 P.2d 986.
           Rule 8 c ,
                 ()           M.R.Civ.P.,    provides that a defense of the
running of the statute of limitations is an affirmative defense
and can only be raised by answer.               Grogan v. Valley Trading Co.,
30 Mont. 229, 76 P. 211; State ex rel. IColbow v. District Court,
38 Mont. 415, 100 P. 207.              Here, defendant failed to plead the
statute of limitations in his answer and therefore waived such
defense.
           However, defendant argues that Pincus holds that this
Court may raise the statute of limitations on its own motion as
a bar to a claim against an administrator under section 91-2710,
R.C.M.      1947.       Cocanougher v . Cocanougher, 1 4 1 Wont. 28, 375 P.2d
1014,       Defendant i s c o r r e c t i n t h i s c o n t e n t i o n however b o t h
Pincus and Cocanougher a p p l y t o c a s e s where t h e c l a i m a g a i n s t t h e
decedent a r o s e many y e a r s p r i o r t o an a c t i o n b e i n g f i l e d .                  They
i n v o l v e obvious cause of a c t i o n which t h e p l a i n t i f f s f a i l e d t o
do a n y t h i n g about.          Such i s n o t t h e c a s e h e r e .
             ldhile we may d i s p o s e of t h i s argument by s a y i n g t h a t de-
f e n d a n t h a s waived h i s r i g h t t o r a i s e t h i s d e f e n s e under Rule

8 ( c ) , M.R.Civ.P.,          we go f u r t h e r and s a y t h a t t h e s t a t u t e of l i m i -
t a t i o n s i s not a v a l i d defense.                 The c a u s e of a c t i o n d i d n o t a r i s e
u n t i l t h e r e was a b r e a c h of t h e agreement t o e x e c u t e mutual w i l l s .
P l a i n t i f f had no knowledge of t h i s breach u n t i l a f t e r t h e d e a t h
of Joseph Kiernan.                W f i n d i s s u e 3 t o be w i t h o u t m e r i t .
                                   e
             I s s u e 4.      Whether p l a i n t i f f i s g u i l t y of l a c h e s even though
n o t p l e a d by d e f e n d a n t ?
             Rule 8 ( c ) , M.R.Civ,P.,                 r e q u i r e s t h a t such a d e f e n s e must
be p l e a d t o be r e l i e d upon.                F a i l i n g t o s o p l e a d , we w i l l n o t f u r t h e r

c o n s i d e r d e f e n d a n t ' s i s s u e 4.      United S t a t e s v . Eytcheson, 237 F.
Supp. 371; Weir v. S i l v e r Bow County, 113 Mont. 237, 124 P.2d 1003;
S t a t e e x r e l . Boorman v , S t a t e Board of Land Commrs., 109 Mont,
127, 94 P.2d 201,
              Issue 5.         Whether t h e a t t e m p t t o e n f o r c e t h e o r a l agreement
v a r i e d t h e terms of t h e w r i t t e n a r t i c l e s of c o p a r t n e r s h i p ?          In
a s s e r t i n g t h i s i s s u e , defendant contends t h e p a r t n e r s h i p remained
i n e f f e c t u n t i l t h e d e a t h of Kiernan and t h e r e f o r e c o n t r o l s t h e
d i v i s i o n of p a r t n e r s h i p a s s e t s a s between t h e p a r t n e r s . The t r i a l
c o u r t found t h a t t h e s a l e of a l l p a r t n e r s h i p p r o p e r t y i n 1966
terminated t h e partnership.                        The p a r t i c u l a r u n d e r t a k i n g of t h e
p a r t n e r s h i p was a "ranching and farming b u s i n e s s i ' .                   The termina-
t i o n of t h a t u n d e r t a k i n g by t h e s a l e of t h e ranch "lock, s t o c k and
b a r r e l " a s t e s t i f i e d by p l a i n t i f f , brought t h e p a r t n e r s h i p evidenced
by t h e w r i t t e n agreement t o an end.                      S e c t i o n 63-503, R.C.M.         1947.
            Under the particular facts of this case, the trial court correctly
            concluded that the written partnership agreement was not a bar
            either to plaintiff's testimony or his claim.
                    Issue 6. Whether the trial court properly ruled on
            evidentiary matters? We have carefully examined the record and
            find no merit to this issue.
                    The judgment of the district court is affirmed.

                                                                             1


                                                     Associate Justice




    /           Chief justice



1       1       Fon. Charles Luedke. District
                Judge, sitting for Mr. Justice
                Castles.




            Mr. Justice Haswell and Mr. Justice Daly 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 years
            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.   19471,
and plaintiff's claim fails.
        This statute provides in pertinent part:
        IIPersons who cannot be 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 proceedings 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. >k f: 2"

        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 368; Johnson v. Mommoth Lode, 136 Mont. 420,
348 P.2d 267; Cox v. Williamson, 124 Bfont. 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, 97 L ed 1357;
Phelps v. Union Central Life Ins. Co., 105 Flont. 195, 71 Y.2d 887.
             I n our view, t h i s f o u n d a t i o n evidence must i n d i c a t e t h e
p r o b a b i l i t y of t h e e x i s t e n c e of such o r a l agreement, and n o t simply
e s t a b l i s h f a c t s equally consistent with i t s existence or explain-
a b l e on u n r e l a t e d grounds.          This requirement i s p a r t i c u l a r l y
important where, a s h e r e , t h e terms of t h e a l l e g e d o r a l agreement
a r e d i r e c t l y c o n t r a r y t o t h e terms of t h e t h r e e p e r t i n e n t w r i t t e n
agreements admitted i n evidence - - - t h e p a r t n e r s h i p agreement, t h e
o r i g i n a l escrow agreement, and t h e modified escrow agreement.                              It
h a s been s o h e l d by t h i s Court i n p r e v i o u s c a s e s i n v o l v i n g a l l e g e d
o r a l agreements t o make a w i l l                  Langston v . C u r r i e , 95 Mont. 57, 26 P ,
                                                  3
2d 160; Cox v . Williamson, s u p r a , and p a r t i c u l a r l y i n c a s e s where
t h e o r a l agreement m o d i f i e s o r c o n f l i c t s w i t h a w r i t t e n c o n t r a c t .
Bauer v . Flonroe, 117 Mont. 306, 158 P.2d 485; Davison v . Casebol t ,
154 Mont. 125, 461 P.2d 2,
             I n t h e i n s t a n t c a s e t h e r e i s simply no evidence of t h e
e x i s t e n c e of an o r a l c o n t r a c t t o d e v i s e and bequeath e x c e p t f o r
t h e testimony of p l a i n t i f f , t h e s u r v i v i n g p a r t n e r .       The making of
a w i l l by p l a i n t i f f no more proves t h e e x i s t e n c e of an o r a l con-
t r a c t by decedent t o e x e c u t e a w i l l i n p l a i n t i f f ' s f a v o r , t h a n t h e
e x e c u t i o n of any c o n t r a c t o r document by one person c r e a t e s a
r e c i p r i c o l o b l i g a t i o n on t h e p a r t of t h e o b l i g e e .   Nor does any
of t h e o t h e r evidence l i s t e d i n t h e m a j o r i t y opinion prove an o r a l
c o n t r a c t by decedent t o d e v i s e and bequeath h i s p r o p e r t y t o p l a i n -
tiff.      The l a p s e of some 24 y e a r s between 1942 and d e c e d e n t ' s d e a t h
i n 1968, w i t h o u t enforcement o r mention of t h e a l l e g e d o r a l c o n t r a c t
by p l a i n t i f f adds n o t h i n g t o t h e r e q u i r e d foundation.
             Absent any f o u n d a t i o n t h e r e f o r , we would h o l d t h a t t h e
d i s t r i c t c o u r t abused i t s d i s c r e t i o n i n a d m i t t i n g t h e testimony
of p l a i n t i f f under t h e deadman's s t a t u t e , and a c c o r d i n g l y t h a t
  la in tiff' s     c l a i m must f a i l .
