¶1(concurring). The facts sought to be proven by Mrs. Helm existed, if at all, prior to the death of the testatrix, and,' if proven, will establish the validity of the will and consequently of the claim thereunder of the witness to the estate of the testatrix, so that the question here presented comes squarely within the rule announced in Whitehead v. Kirk, 104 Miss., at page 822, 61 So. 737, 62 So. 432, 51 L. R. A. (N. S.) 187 Ann. Cas. 1916A, 1051, and followed in Cooper v. Bell, 114 Miss. 766, 75 So. 767, which is that:
“Whenever a witness is offered for the purpose of proving any transaction, act, contract, admission, license, condition, etc. (whatever may be its exact nature), as ‘a fact to be proven,’ and proven as a fact existing or occurring prior to the death, and the proof of such fact as then existing or occurring is determinative of a claim or right of such witness to or in property of the deceased, and establishes, such claim or right directly and finally, there the witness is testifying to establish his claim which originated during the lifetime of such deceased.”
¶2*743The cases of Kelly v. Miller, 39 Miss. 17; Tucker v. Whitehead, 59 Miss. 594; Covington v. Frank, 77 Miss. 606, 27 So. 1000; and Jamison v. Jamison, 92 Miss. 468, 46 So. 83, 945, here relied upon to support the competency of the witness, were all reviewed in Whitehead v. Kirk, and what was there said by the court in pointing out that they are not. in conflict with the conclusion there reached applies with equal force here.