dissenting. I agree with the majority in interpreting the law in this case but I disagree as to the conclusions reached based upon the particular facts of this case. A paragraph in the decedent’s will is entitled identification. In the identification article the decedent identifies his wife, his son and his daughter’s child (granddaughter). There is absolutely no reference to the appellant. The will subsequently established a family trust during the widow’s lifetime. The trustee was granted authority to make funds available from the family trust to any of decedent’s descendants as necessary to enable the descendants to maintain their status in accordance with the standard of living enjoyed by them at the time of decedent’s death. Upon the death of the widow the proceeds of the trust would be distributed to decedent’s named child and stepchildren as well as his granddaughter (appellant’s daughter).
The trust was not established for the benefit of any class. Appellant was not mentioned as a beneficiary or as a contingent beneficiary. The likelihood of appellant receiving any benefits from the trust was apparently remote. In fact she has not received any benefits from the trust. Being neither entitled to benefits from the trust nor named in the will I am of the opinion that she is clearly a pretermitted child.
I agree with appellant that Robinson, Adm’r v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981) is dispositive of this case. In Robinson there was a contingency that the pretermitted children would inherit if none of the devisees survived. That contingency is no more probable than is the one in the present case. We upheld the ruling of the trial court that the two sons in Robinson were pretermitted in accordance with Ark. Stat. Ann. § 60-507 (b) (Repl. 1971). In Robinson we stated:
Thus, where the testator fails to mention children or provide for them as members of a class, it will be presumed that the omission was unintentional, no contrary intent appearing in the will itself. In Cockrill v. Armstrong, 31 Ark. 580 (1876), the presumption is described in these terms:
So strong is the presumption that a father would not intentionally omit to provide for all his children, that in case the name of one or more of the children is left out of the will, by statute it is held to be an unintentional oversight, and the law brings them within the provisions of the will, and makes them joint heirs in the inheritance.
If Cockrill was the law when we decided Robinson in 1981, it is still the law. Therefore, I would hold that the appellant is a pretermitted child.
Adkisson, C.J., joins in this dissent.