dissenting.
My only concern is with Part II of the opinion for the Court. On beginning my reading of Part II the handwriting on the wall materialized in the second paragraph thereof when I encountered the ipse dixit that “the decedent chose not to revise her will even though she was in very poor health.” The italicizing of “chose”is of my own choice — by which I mean to suggest that it is an act deliberately done and with full knowledge of what I am doing. How a majority can for the Court divine that Barbara Louise Keeven exercised a choice, knowledgeable or otherwise, is far beyond my ken. If Barbara Louise Keeven had any knowledge of the contents of I.C. § 15-2-301, no one has directed my attention to any place in the record which establishes that fact. If she learned of that section of 1971 statutory law in casual conversation or gossip with older friends, she heard more discussion than that with which I have been blessed, and it is not improbable that more shop talk of the legal profession has passed by these ears than those of Barbara Louise Keeven, who, so far as we know, was the ordinary housewife.
The Uniform Probate Code was not designed for housewives to ponder at tea-parties or quilting bees. It was designed for lawyers and judges who will know what a testator is, what a testamentary provision is, what an omitted spouse is, what a transfer is, and what is meant by “in lieu of.” It is a statutory provision which judges will apply, like geometricians to a given hypothesis, to a given state of existing facts.
For every married couple each is the spouse to the other. Until two people have married, they are not husband and wife; neither is spouse to the other. Spouse is a word of art which the legislature apparently selected to use for brevity, because it necessitates knowing or comprehending a short, very short, definition. According to Black’s Law Dictionary, Fifth Edition, p. 1258: “Spouse. One’s wife or husband.”
After her first widowhood, until Barbara Louise Keeven married Sylvester Keeven, she had no spouse. As older people are often by other older people encouraged to do, it is a fact that she executed a will. In that will she provided for Sylvester Kee-ven, whom she referred to as her dear friend. Taking the legislature’s law as written, Sylvester Keeven on their nuptial day became her spouse and Barbara Louise Keeven became his spouse. Her will, however, made no provision for any spouse. The word spouse went wholly unmentioned.
It would be asinine to believe other than that the legislative intent was, in 1971, to perpetuate that which had theretofore and forever been the statutory law in Idaho, an embodiment of the public of Idaho that in all cases — whether of testacy or intestacy —the surviving spouse will be afforded that protection in the future which social *462justice, as reflected in those statutory laws, requires.
In the case of intestacy, since the creation of the Territory of Idaho in 1864, the law of Idaho provided that the surviving spouse was entitled to have the court set apart out of the deceased spouse’s estate a homestead. Probate Practice Code of 1864, § 123; former I.C. § 15-502, in effect until adopting of the Uniform Probate Code in 1971. Also dating back to 1864, former I.C. § 14-103 (superseded Vol. 3 of the Idaho Code, published 1947) provided that on a spouse dying, leaving more than one child living, the surviving spouse would inherit one-third of the estate. Other former sections of the statute provided, as we learned in law school, that marriage subsequent to execution of a will revokes that will of a testator unless the spouse created by the marriage predeceases the testator, as to a man, and in any event as to the will of an unmarried woman. Former I.C. §§ 14-311, 14-312, 14-313.
If the Uniform Probate Code of 1971 intended any drastic changes in that long-established body of law, all that is discernible is a change to let the will survive, assuming its validity in requisite respects, but to treat omitted spouses as pretermit-ted children were forever treated where the will was otherwise valid. My reading of the majority opinion is that in this regard we are not of unlike views.1 We quickly part company, however, where the majority, complacently agreeing with the Utah court, goes .on to hold that because the testamentary provision for Sylvester Kee-ven as a “dear friend” is “more than a token inheritance,” and because his share of the estate far exceeds the share of any of the children, he “cannot be considered an omitted spouse.”
With all due respect to my brethren, and for lack of a ready better descriptive word, this is ridiculous. Clearly ignoring the plain language of the statute, the Court relegates Sylvester Keeven to that share of the estate which Barbara Louise Hurst left him when he was unto her, her “dear friend.” When Barbara Louise Keeven passed on, her will made no provision for her spouse — who also happened to be the same Sylvester Keeven.
The majority, of course, does not engage in any reasoning process to reach its result, but simply seizes on Estate of Christensen, 655 P.2d 646 (Utah 1982). The Christensen court in the opening lines of its decision very visibly placed on the wall the handwriting which forecast its decision.
Appellant [widow], who married the 83-year-old testator six weeks before his death, contends that she is entitled to 50 percent of his $10 million estate as an “omitted spouse” under U.C.A., 1953, § 75-2-301.” Christensen, supra, 655 P.2d at 647.
That court had to do some rather fancy high-stepping to attain its goal. First, it had to acknowledge the prior history of the common law and its own statutory law, much as I have done. It had to acknowledge that the earlier pertinent statutes “specified that in order to avoid the rule of revocation by marriage a provision for the surviving spouse must have been included in the will in contemplation of marriage. In other words, the will provision must have been executed in favor of the recipient in his or her capacity as a prospective spouse.” Id. at 649. Conceding openly that “ ‘contemplation of marriage’ figured prominently in prior statutes and ease law,” the Utah court wholly abandoned such long-established principles, simply because language to that effect had not been “clearly imposed by statute.” Id. at 649.
Having so positioned itself, the Utah court seized upon the holding of a case from the Florida court of appeals, Estate of Ganier, 402 So.2d 418 (Fla.App.1981), saying its “reasoning was persuasive of the same result in this case.” Id. at 649. The Utah court kept to itself, however, what that illuminating reason was. In an ipse *463dixit nonreasoning of its own, the Utah court was content to merely hold, and hold it did. The court held that a testator “can provide by will for his surviving spouse [the language of the pertinent statute] in such a way as to prevent the recipient from being an ‘omitted spouse’.... ”
The Utah court, however, is deserving of credit in conceding as it did, Christensen, supra, 655 P.2d at 650, that the testator in that case “may simply have neglected to amend his will after marriage, or he may have re-examined the will and decided that his previous testamentary gift would adequately provide for his new spouse.’’2 Additional credit is due for recognizing, implicitly as it does, the social policy that widows who survive should be adequately provided for. No credit, however, should be extended to the Utah court for giving no mention to the proposition that that testator did not know the law or the extent and ramifications of the law, which has to be a distinct third possibility, as I have discussed, supra. And, no credit is due the Utah court for not considering that if the multi-millionaire testator in that case was aware of the law, or his attorney was, a post-marriage three-line codicil would have removed all doubt.
The Utah court is also deserving of acknowledgment of its devious ingenuity where it goes on to add in the next sentence following the one above set forth, that where there is no way of knowing, “the surviving spouse should be permitted to show that in the circumstances presented, including the provision of a particular testamentary gift, the testator failed to provide by will for his surviving spouse....” Having been so kind, the Utah court next proceeded to open Pandora’s box by enumerating eight relevant considerations which must go into that factual equation, and in that manner cast, and acknowledged that it did so, an insurmountable burden on the deceased Mr. Christensen’s widow. End of case. Result: One-half of 83-year-old Mr. Christensen’s millions did not fall into the undeserving hands of his omitted short-term, and presumably young, wife, but instead remained in the custody of the respondent bank (by name unmentioned in the opinion) which would administer it all as trustee for Mr. Christensen’s granddaughter. Needless to say, were I a legal scholar or commentator, I would place no precedential value on the Utah court’s opinion.
Nor am I that impressed with the Ganier decision from a Florida court of appeals. Unmentioned in either the opinion of the Utah court or the opinion of today’s majority is the fact that it is a bare two-one decision adverse to a 76-year-old widower and a 79-year-old widow who met in 1973 and shortly after commenced living together. No millions of dollars were involved here, and both of limited income, they pooled their resources. Five years later (at ages 81 and 84) Emma broke her hip and thereafter was mobile only by use of a walker. 402 So.2d at 420. Did Fred abandon her? Is that why he for equitable consideration was destined not to prevail? Likely, one might say, but not so. Picking up the majority opinion from Ganier: “She required care by a nurse and Frederic. Frederic decided to marry Emma in July of 1978.” Presumably, although the opinion does not speak to it, Emma also decided to marry Fred, unless it be that under Florida law such matters are unilaterally determined by the male alone. At any rate, they were married; Emma later became even more invalided by a stroke. Fred was her guardian and Emma died in the sixth month of their marriage. Unfortunately, and what apparently would have been disturbing to the two members of the Court of Appeals who reversed the lower court, Fred, as guardian, husband, and nurse, had not properly distinguished her separate funds from his separate funds. In not accounting, Fred testified that he thought the funds belonged to him. Emma’s 1977 will left to Fred her bank account at Securi*464ty First Federal, and also her bank account at Atlantic Bank. The two of them had a joint account with the latter. Dwelling no longer there, as the reader can go to the opinion, the trial court considered immaterial to the “omitted spouse” issue whether or not Fred misappropriated or misspent Emma’s funds. 402 So.2d at 420. Having so stated, the Court of Appeals was implicitly of a different view:
We reverse this judgment because the record clearly shows that Frederic was “provided for” in Emma’s will, at least prima facie, within the meaning of section 732.301, Florida Statutes (1979). Id. at 420.
How it rationally was able to reverse I am unable to perceive from a reading of the opinion — unless it is this:
The record clearly shows that Emma married after making her will; that Frederic survived her; and that there was a specific bequest of bank accounts to Frederic in Emma’s will. As stated in the Livingston case, the burden was on Frederic to prove that the will did not provide for him. He failed to carry this burden. Id. at 422.
It was that holding, so I surmise, which the Utah court admired and utilized in its opinion. It is, however, devoid of any ratio decidendi, if that Latin word means a sound legal analysis predicated on logic and reasoning, and with a proper regard for clear statutory language couched in the Mother Tongue, as the late Senator Sam Irvine so well stated it.
Another not insignificant feature of the Florida decision is that Florida has a statute, § 732.201 Fla.Stat. (1979) which provides that if a surviving spouse is dissatisfied with the provision in the will made for him or for her, the widow or widower has the right to take an elective share of the estate — which the statute sets at 30 percent. I will not concern myself with attempting the mathematics of comparing 30 percent to what Fred did receive out of Emma’s estate, nor with what Sylvester receives out of his wife’s estate, and although I can see that 30 percent of $10 million is more than Mrs. Christensen received, the point is that this fact was as equally influencing on the Ganier majority as was octogenarian Fred’s inability to comprehend his obligations as a guardian.3 The Utah court ignored that aspect of the Florida decision, and domino-like, so has the majority in the case before us.
As I intimate, were the majority to eschew deciding the case before us solely on the basis of the Utah decision — in turn based solely upon the Florida decision — in favor of taking the statute as it is and also our own case law and former statutory law as it was, and formulate a decision based on logic and reasoning, I might very well be persuaded to join it. But, unfortunately, there is as little of ratio decidendi in the majority’s opinion in our case as there was in the Florida court’s opinion — as well pointed out in the reasoned opinion of dissenting Judge Upchurch. It should be his opinion which the Idaho Supreme Court should this day find persuasive. He wrote:
Under the common law, the marriage of a man and the birth of a living child subsequent to the making of his will operated as a complete revocation unless provision was made in the will in contemplation of both events. Herzog v. Trust Co. of Eastern, 67 Fla. 54, 64 So. 426 (1914); Belton v. Summer, 31 Fla. 139, 12 So. 371 (1893). The marriage of a woman revoked her will even without the birth of issue. Colcord v. Conroy, 40 Fla. 97, 23 So. 561 (1898); 95 C.J.S. Wills § 291 (1957); Redfearn, Wills and Administration in Florida, § 8.10 (5th ed. 1977). These rules were not changed in Florida until the Probate Act of 1933. The language of the act as found in section 8(d), section 5477(4)(d), Comp. Gen.Law Supp. was essentially the same as now found in section 732.301, Florida *465Statutes (1977) with which we are now concerned.
The adoption of the Probate Act of 1933 was not a rejection of the common law rules but rather a codification of them. The common law had, by then, changed from the earlier rule which provided that marriage and the birth of a child or marriage alone in the ease of a woman, after execution of a will resulted in revocation of the entire will. Easterlin v. Easterlin, 62 Fla. 468, 56 So. 688 (1911). The contemplation of marriage exception developed to avoid the unfairness to other beneficiaries where it was obvious the testator had executed his will with marriage to this particular spouse in mind. Belton v. Summer, 31 Fla. 139, 12 So. 371 (1893).
The purpose of the statute is to give effect to a will which reflects a testamentary intent that the will be effective even should the testator subsequently marry and to protect the surviving spouse’s right to inherit where such intent is not demonstrated.
Most courts have rejected any inquiry into adequacy of a provision in a will. In interpreting a will, a court is not concerned, with the amount of the testator’s bounty. In Re Bridler’s Estate, 165 Cal.App.2d 486, 331 P.2d 1028 (1958); In Re Brannon’s Estate, 111 Cal.App. 38, 295 P. 83 (1931); Czepiel v. Czepiel, 146 Conn. 439, 151 A.2d 878 (1959).
The majority opinion overlooks a well known fact of life; that is, that good friends often marry. The circumstance that a person was sufficiently appreciated to be the recipient of bequest in a will should not militate against this or her taking by intestacy when a person who was a stranger to the testator and therefore not included in the will can so elect. The inquiry of the court should be to determine whether the testator intended that the will should remain his will after his marriage. Therefore, the ultimate question is, did he contemplate marriage at the time he executed his will?
While it is true as the majority suggests, that section 732.201, Florida Statutes (1979) prevents a surviving spouse to whom a small bequest is given in the will from being “disinherited” because he or she may choose to take an elective share, this is small consolation to the spouse who would otherwise take the entire estate as would be the case where the decedent had no lineal descendants. § 732.102(l)(a), Fla.Stat. (1979).
Some courts, interpreting similar statutes, reason that if property is specifically devised or bequeathed to a person and that person and the testator subsequently marry, then the requirements of the statute are met because the will speaks as of time of death. In Re Appenfelder’s Estate, 99 Cal.App. 330, 278 P. 473 (1929). Most courts, however, have rejected this reasoning as did the California Supreme Court in In Re Poisl’s Estate, 44 Cal.2d 147, 280 P.2d 789 (1955). There the court pointed out that decisions applying the contrary rule gave no consideration to the underlying purpose and policy of the statute is remarkably similar to section 732.301, Florida Statutes (1977).[4]
*466In the case before us, the trial court applied the correct burden of proof as enunciated in Livingston. In its order, the court said in paragraph four: “Said reference to petitioner was not made to him in the prospective status as the husband of the testatrix____” There is substantial evidence to support this finding. There was no evidence to support this finding. There was no evidence to support the view that marriage was contemplated, and the court so found.
If Mr. Ganier were the pretermitted spouse and there is indeed a requirement that marriage be contemplated, it is not necessary to reach the question of whether the bequest under the will lapsed. If it is demonstrated that he misused funds in his trust as guardian, recovery can be had. I readily agree with the majority that he could not misappropriate his wife’s property and then contend his bequest had lapsed because of that misappropriation.
The record reflects that Mr. Ganier was devious and greedy in dealing with his wife’s funds. That fact should not persuade us to adopt an impractical rule of law which, in my opinion, is in direct conflict with established and respected precedent. Ganier, supra, 402 So.2d at 423-24 (emphasis added).
Today’s ipse dixit opinion for the Court is on a par with the Ganier majority opinion, and both are a far cry from the law and logic laid out by Judge Upchurch.
. The majority says the "requirement that an omitted spouse not provided for in the will receive the share he or she would have inherited by intestacy reflects a familiar and long standing feature of the law of wills.”
. The reader will remember that today’s majority who rules against Sylvester Keeven was less fair, and simply divined that Barbara Louise Keeven chose not to revise her will after marrying Sylvester.
. In that regard the Idaho courts are less demanding. Cf. Grover v. Grover, 109 Idaho 687, 710 P.2d 597 (1985).
. California Probate Code § 70, to which Justice Upchurch refers, provides:
If a person marries after making a will, and the spouse survives the maker, the will is revoked as to the spouse, unless provision has been made for the spouse by marriage contract, or unless the spouse is provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of revocation can be received.
Former I.C. § 14-312 was almost identical to California's section up until Idaho’s Probate Code was revised in 1971, and at one time the two were identical. Prior to the adoption of the new Probate Code, it read:
Revocation by marriage. — If, after making a will, the testator marries, and the wife survives the testator, the will is revoked, unless provision has been made for her by marriage contract, or unless she is provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of revocation must be received.