dissenting in part, concurring in part.
Because I cannot agree with the majority that In re Graham’s Estate, 73 Ariz. 179, 239 P.2d 365 (1951) constitutes binding authority concerning the statutory construction issue presented on this appeal, I dissent.
The only facts pertinent to a resolution of the statutory construction issue presented on this appeal are that decedent, a domiciliary of this state at the time of his death, left a surviving spouse, who was neither a domiciliary nor a resident of this state. Facts set forth in the majority opinion relating to pending dissolution proceedings and the equities relating thereto are manifestly immaterial in view of the provisions of A.R.S. § 14-2802. That statute clearly sets forth the circumstances under which dissolution proceedings function to preclude the status of “surviving spouse” for the purposes of A.R.S. §§ 14r-2401, 14-2402 and 14-2403. None of those circumstances are presented here.
Leaving aside for a moment the question of whether the disposition in this case is governed by the Arizona Supreme Court’s opinion in Graham, supra, there is simply no canon of statutory construction or of logic that would support a holding that §§ 14-2401, 2402 and 2403 require that the “surviving spouse” or “dependent children” referred to therein must be residents of this state. On the contrary, the statutes clearly do not prescribe such a requirement. Were such a requirement intended it would have been a simple matter to insert appropriate language as was done with reference to the decedent (§ 14-2401, “A surviving spouse of a decedent who was domiciled in this state . . ..”), (A.R.S. § 14-2402, “. . . the surviving spouse of a decedent who was domiciled in this state . . ..”), (A.R.S. § 14-2403, “. . .if the decedent was domiciled in this state, the surviving spouse and dependent children are entitled . ..”). Applying the canon of construction “expressio unius est exclusio alterius”, the conclusion is inescapable that the legislature, having expressly prescribed the residential requirement for the decedent, but not for the surviving spouse and dependent children, did not intend that there be such a requirement.
*97Certainly there are sound policy reasons for all states to limit their homestead, support allowance and exempt property provisions of their probate codes so that they apply only to estates of decedents who were domiciliaries of the state at the time of death. By doing so, these statutory allowance provisions meet the felt necessity of providing some protection to the surviving spouse and dependent children against disinheritance and the rights of creditors, while at the same time guarding against the duplication of these allowances, since they can only be made in the state in which the decedent was domiciled. With this protection against duplication, the surviving spouse and dependent children are assured of getting the full benefit of the allowances provided by statute regardless of their residence, while at the same time the estate is not burdened with a multiplicity of overlapping claims for statutory allowances when proceedings are pending in various states.
Considering now the Arizona Supreme Court’s prior decision in Graham, supra, it is my opinion that it simply does not provide a binding precedent governing the question presented on this appeal. In arriving at this conclusion, I am very much aware of this Court’s position as an intermediate appellate court, bound to follow precedent established by our state’s highest court. McKay v. Industrial Commission, 103 Ariz. 191, 438 P.2d 757 (1968). With the foregoing in mind, my initial observation is that, at the most, the language in Graham relied upon by the majority is dicta. But, dicta considerations aside and accepting that language as the holding of the case, the holding still does not provide binding precedent for the interpretation of the statutory provisions here involved.
While the opinion in Graham does not refer to or consider the specific language of the statute, it does purport to involve the construction of former § 38-902, Arizona Code Annotated, 1939. The full text of that former statute is quoted in footnote 2 of the majority opinion. A comparison shows that there is little similarity between its language and the language used in A.R.S. §§ 14-2401, 2402 and 2403, apart from the fact that to some extent they deal with similar subjects.1 Former § 38-902 is completely silent as to the imposition of residential prerequisites. If A.R.S. § 14— 2401, et seq., were likewise silent, perhaps Graham might arguably have some pertinency. But, as swe have noted, these statutes are not silent. They expressly advert to residency and make it a requirement only on the part of the decedent. I have previously set forth my analysis relating to the proper interpretation of these statutory provisions. At this point, I can only add that these sections were enacted as part of a comprehensive revision of our probate laws, based upon the Uniform Probate Code.2 As a part of that revision, our legislature also enacted A.R.S. § 14-1102, which mandates that the probate code “be liberally construed and applied to promote [the code’s] underlying purposes and policies.” One of the statutory specified “underlying purposes and policies” is “To make uniform the law among the various jurisdictions.” A.R.S. § 14 — 1102B(5). The construction I urge today is in accordance with the plain language of these statutory provisions, and thus in accordance with that uniformity objective.
The particular facts presented in this appeal can certainly be viewed as presenting persuasive “equities” justifying affirmance. However, the precedent we establish goes further than this case. It will apply equally in the future to fact situations in which the perceived “equities” would appear to demand the granting of the allowances provided by the statutes, e. g., in situations *98where impecunious minor children are nonresidents living with a divorced parent, dependent upon the decedent for support. Therefore, we should not allow the “hard facts” presented in this appeal to dissuade us from an objective interpretation of the statutory language.
For the foregoing reasons I dissent and would reverse the trial court’s rejection of the surviving spouse’s claims for allowances pursuant to A.R.S. §§ 14-2401 and 2402. As to the surviving spouse’s .claim for a family allowance pursuant to A.R.S. § 14-2403, even though in my opinion her nonresidency does not disqualify her for that allowance, I agree with the majority that A.R.S. § 14-2403 gives the trial judge discretion in regard to the granting of a family allowance, and that that discretion was not abused in denying a family allowance to the surviving spouse under the facts presented here. I therefore concur in the majority’s affirmance as to the denial of the family allowance claim.
. Graham and former § 38-902, A.C.A., 1939, dealt with setting aside a parcel of real property located in Arizona as a “probate homestead,” whereas present A.R.S. § 14-2401 does not contemplate the setting aside of real property located in Arizona, but rather an “allowance in lieu of homestead.”
. A.R.S. §§ 14-2401, 14-2402, and 14-2403 are essentially identical to §§ 2-401, 2 — 402, and 2 — 403 respectively of the Uniform Probate Code. A.R.S. § 14-2802 is essentially identical to § 2-802 of the Uniform Probate Code.