Nebeker v. Piper Aircraft Corp.

HUNTLEY, Justice,

dissenting.

Having authored Schiess, where I, at the time, thought we were merely making a correct application of Justice Bakes’ opinion in Everett v. Trunnell, and having thoroughly considered the exchange of views between Justices Bakes and Bistline in the instant case, I am willing to concede that this Court erred in Schiess.

Everett was not a probate proceeding. Kenneth Everett’s parents were not trying to share in his estate. Nothing in the record in that case shows that Kenneth Everett even had any estate, other than maybe the motorcycle upon which he was riding when he was killed. The surviving spouse and child sued the Trunnels for wrongful death, and “that case was settled.” Everett, 105 Idaho at 789, 673 P.2d at 389. What the parents were seeking to do was maintain a wrongful death action. Because Everett was killed in Idaho, the parents filed suit in Idaho.

The parents were held to have no cause of action under I.C. § 5-311 because it was only the wife and issue who qualified as heirs under the Idaho statute. Parents of a deceased child simply did not qualify as heirs under “the laws of intestate succession in effect as of the date of death.” Hogan v. Hermann, 101 Idaho 893, 623 P.2d 900 (1980). Everett, 105 Idaho at 789, 673 P.2d at 389.

At the top of page 790, 673 P.2d at 390, Justice Bakes wrote that “where the decedent leaves both a surviving spouse and issue, parents of a decedent are not entitled to inherit ...,” and, not being heirs, “they have no cause of action under I.C. § 5-311.” Without doubt, that was correct, and all four of us agreed with him. Not the least mention was made in Everett as to the extent of decedent’s estate, if any.

In authoring Schiess, I relied upon and quoted correctly from Justice Bakes’ opinion:

To be proper parties plaintiff for the wrongful death of Mr. Schiess, I.C. § 5-311 requires the children to be “heirs” of Mr. Schiess. We have defined the word “heirs” in the context of § 5-311 as referring to “persons who are entitled to inherit the property of an intestate, according to the laws of intestate succession in effect as of the date of death." Everett v. Trunnell, 105 Idaho 787, 789, 673 P.2d 387, 389 (1983). (Em*617phasis added). Schiess, supra, 107 Idaho at 796, 693 P.2d at 442 (footnotes omitted).

However, in the following paragraph, we stated:

Surviving children only become “heirs” of the decedent spouse if the decedent’s spouse leaves separate property with a value in excess of $50,000. Id.

In retrospect, I am convinced we erred in reaching such a conclusion in the absence of supporting legal authority. On reconsideration, the unsupported statement used in Schiess was not in accord with the law as it had always been before and in Everett: Persons who are entitled to inherit the property of an intestate decedent are heirs within the context of I.C. § 5-311.

It is true that in a probate proceeding, if there is no estate at all, no one inherits anything, and if there is not enough to satisfy the surviving spouse’s statutory entitlement, she will not receive that much out of the estate, and the issue will receive nothing. But that is in a probate. In the context of I.C. § 5-311, the surviving spouse and issue of a decedent do qualify as heirs entitled to maintain the suit for wrongful death.

This was correctly noted in Everett: The state objective under our present wrongful death scheme is clear. Our legislature wished to change the common law to allow recovery for wrongful death, while at the same time limiting that recovery to those persons most likely to suffer a loss. The objective was to allow suit by those persons most likely to be affected by the untimely death of a decedent, such as a surviving wife and child. This limitation on the statutory cause of action is reasonable and bears a rational relationship to a legitimate state objective.

Everett, supra, 105 Idaho at 790, 673 P.2d at 390 (emphasis added).

From day one, there has not been a time in Idaho when the surviving spouse and issue of a wrongfully killed decedent did not and do not have the right to sue for that wrongful death. This is so because under the prior general intestacy laws which were in effect until 1971, and then under the Uniform Probate Code as well, both the surviving spouse and issue are entitled to inherit from their deceased husband/wife and father/mother. The fact that there may not be any estate to probate is of no consequence in making the determination as to qualifying as a decedent’s heirs. It is an inescapable fact that a parent’s children are entitled to inherit on the parent’s death. That the estate may be nil or nearly so does not disqualify a child from being an heir. Nor does the death of a parent by reason of wrongful conduct of another preclude surviving children from having a cause of action even though there is a will leaving all of the estate to the spouse.

Mention should also be made that at the time of writing and releasing the opinion in Schiess v. Bates, we did not have the benefit of the views of the Montana Supreme Court which when confronted with the identical question in Johnson v. Marias River Elec. Co-op, Inc., 687 P.2d 668, 671-72 (Mont.1984), stated:

Did the legislature intend in this case, by an indirect but overwhelming stroke, to cut off forever the time-honored rights of children to recover damage for the wrongful death of their parent? If such was the intent of the legislature in 1974 when the Uniform Probate Code was adopted, it is the best kept secret of the decade. Not a single word was uttered in debate, in the legislature, in the press, or by the legal scholars who proposed or propounded the code, and sponsored it in the legislature and in seminars, that the code severed the rights of such children.
Therefore, until the legislature specifically tells us otherwise, we will recognize the historical right of the issue of a decedent to join with their surviving parent to recover damages in a single wrongful death action to the extent permitted prior to the Uniform Probate Code. We are confident that this is what the legislature intended. To hold otherwise would result in consequences for which only the legislature itself should be directly responsible. In this case, it would wipe out *618the right of the two minor children involved to recover damages, if the proof shows damages, that they suffered by virtue of the death of their parent.

Those who have practiced law in Idaho in the time period between the enactment of the Uniform Probate Code and our unfortunate decision in Schiess, plaintiff and defense attorneys alike, all treated the code’s enactment as not depriving minors of a cause of action. Even when Schiess was pending before this Court, the statute was amended to re-assert the legislature’s continued intent that minors have a claim for loss of their parents. Were we more in tune with the actual practice of law, we would follow the lead of the Montana Supreme Court in Johnson, supra.

BISTLINE, Justice, dissenting, and concurring also in the dissent of Justice HUNTLEY.

The case was argued orally on May 20, 1986. Less than three weeks later I authored and circulated a proposed opinion for the Court which, in my naivete, I thought would command and hold a majority of the Court, thereby rectifying the error of Schiess v. Bates, and preclude a second such miscarriage of justice. That opinion, with slight revisions which have been made during the ensuing year is respectfully submitted for the reader’s determination as to whether it is the more respectably founded in case law, common sense, and notions of justice than the majority opinion.

I.

The sole issue on appeal is whether the decedent’s children are entitled to sue for the wrongful death of their mother. The district court stated that our recent case of Schiess v. Bates, 107 Idaho 794, 693 P.2d 440 (1984), was “dispositive of this issue,” R., Vol. 2, p. 115, and dismissed the decedent’s children as improper parties plaintiff. Plaintiffs attack the validity of Schiess, arguing that it violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Plaintiffs further argue that Schiess improperly interpreted Idaho law establishing proper plaintiffs in a wrongful death action.

In Schiess, the decedent’s spouse and her children filed a wrongful death action against the defendant. The defendant moved for the dismissal of the decedent’s children, arguing that they were improper parties plaintiff. This Court agreed with the defendant, stating:

To be proper parties plaintiff for the wrongful death of Mr. Schiess, I.C. § 5-311 requires the children to be “heirs” of Mr. Schiess. We have defined the word “heirs” in the context of § 5-311 as referring to “persons ‘who are entitled to inherit’ the property of an intestate, according to the laws of intestate succession in effect as of the date of death. ” Everett v. Trunnell, 105 Idaho 787, 789, 673 P.2d 387, 389 (1983). (Emphasis added.)
The law of intestate succession at the time Mr. Schiess died is set forth in I.C. § 15-2-102 and 15-2-103, which provide that the surviving spouse receives all of the community property and the first $50,000, and one-half of the remaining balance, of the decedent spouse’s separate property. Surviving children only become “heirs” of the decedent spouse if the decedent’s spouse leaves separate property with a value in excess of $50,-000. There is no allegation that Mr. Schiess owned separate property with a value in excess of $50,000; there is nothing to suggest or indicate that the Schiess children are “heirs.” Therefore, they are improper parties plaintiff under 1.C. § 5-311. Schiess, supra, 107 Idaho at 796-97, 693 P.2d at 442-43 (emphasis added) (footnotes omitted).

In Schiess, it was also noted that former 1.C. § 5-311 under which the plaintiffs in Schiess sued, and under which the plaintiffs in this case sued, was repealed by chapter 158 of the 1984 Idaho Session Laws, p. 385, and replaced by a new § 5-311. Id. at 797 n. 2, 693 P.2d at 443 n. 2. This new section specifically defines heirs to include, among other persons, the children of a decedent. Plaintiffs do not *619argue that the new § 5-311 applies to them, but rather that the new section is reflective of the legislative voice that the old statute in effect at the time of the wrongful death included as heirs any children of a decedent. I agree, and for other reasons would overrule Schiess.

II.

The first case in Idaho as recognized authority was Whitley v. Spokane & Inland Railway Co., 23 Idaho 642, 132 P. 121 (1913), affirmed 237 U.S. 487, 35 S.Ct. 655, 59 L.Ed. 1060. In Whitley the Court was confronted with several issues, one of them being who qualifies as an heir under Idaho’s Wrongful Death Act.1 In answering this question, the Court stated:

An heir is ‘‘one who on the death of another becomes entitled by operation of law to succeed to the deceased person’s estate, as an estate of inheritance; an heir at law.” (Standard Dictionary; Oxford Dictionary; Bouvier Law Dictionary; Black’s Law Dictionary.) Our statute defines who shall inherit the property of a deceased person. Those persons are his “heirs,” and our statute, sec. 4100, authorizes the “heirs” of a deceased person or his personal representative to maintain an action such as the one at bar. Id. 23 Idaho at 662, 132 P. at 127 (emphasis added).

The statute in operation at the time Whitley was decided, which defined ‘‘who ... becomes entitled ... to succeed ...” was Rev. Code § 5702. That statute, in pertinent part, stated the following:

1. If the decedent leave a surviving husband or wife and only one child, or the lawful issue of one child, in equal shares to the surviving husband or wife and child, or issue of such child. If the decedent leave a surviving husband or wife and more than one child living, or one child living and the lawful issue of one or more deceased children, one-third to the surviving husband or wife, and the remainder in equal shares to his children and to the lawful issue of any deceased child by right of representation____ (Emphasis added.)

It is readily apparent, then, that when Whitley was decided children were heirs, and were therefore proper parties plaintiff in a wrongful death action.

It is conceded that under the laws of the state of Idaho, the respondent, Mary Elizabeth Whitley, is an heir of A.P. Whitley, deceased, and that where the deceased, as in this case, left no issue, the surviving wife and surviving mother, the father being dead, are his only heirs and that they would inherit from him in equal shares. (Emphasis added). Whitley, 23 Idaho at 660, 132 P. at 126.

The Court cited § 5702, Revised Codes, as the only applicable provision. Section 5702 is the second section of ch. 14 of the Revised Codes and is entitled SUCCESSION, beginning at p. 432. Page 436, § 5711 informs the reader that all of the preceding sections apply only to the separate property of the decedents. Then follows § 5713 with which we have all been long familiar, and is entitled DEVOLUTION OF COMMUNITY PROPERTY. It provided that on death of either spouse, one-half of community property shall go to the surviv- or, and the other one-half shall have been subject to testamentary disposition of the deceased spouse. In the absence of testamentary disposition, that one-half will go in shares to surviving children of the deceased, but if there are none, the survivor takes all of the community property “to the exclusion of collateral heirs.” These statements were determinations of heirship in circumstances of intestate succession to community property.

Nothing in Whitley tells us anything about the status of any property owned by the decedent in that case or even that the deceased Mr. Whitley owned any property. The concession that both the wife and the mother were heirs could not have been based upon § 5713. There very well may have been no property of any kind within *620the State of Idaho. But the cause of action for a wrongful death occurring in Idaho was properly within the jurisdiction of the Idaho courts, and would accrue to any person who was an heir of the deceased Mr. Whitley — as determined by Idaho law.

Section 5702 deals specifically with intestate succession to an estate “not otherwise limited by marriage” (i.e., separate estate per § 5711) and subdivision 2 thereof covers the situation where the deceased leaves no issue, but did leave a wife and a parent, or parents:

2. If the decedent leave no issue, the estate goes, one half to the surviving husband or wife, and the other half to the decedent’s father and mother in equal shares, and if either be dead, the whole of said half goes to the other. If the decedent leave no issue, nor husband, nor wife, the estate must go to his father and mother, in equal shares, or if either be dead, then to the other.

What the parties had conceded in Whitley was, then, not that the deceased had any separate estate, or even that there was any estate of any kind in Idaho, but that “Mother” Whitley was in the class of people created by § 5702(2) who could inherit if there was any estate to inherit.2

In recognition of Idaho’s wrongful death statute being identical to and taken from the California Civil Code, Justice Ailshie gratuitously acknowledged what he thought was a different point of view in Redfield v. Oakland Consolidated St. Ry. Co., 110 Cal. 277, 42 Pac. 822 (1895), and which Justice Ailshie called mere dictum. Whitley, supra, 23 Idaho at 662, 132 P. at 127. With Idaho having basically the identical statute at the time, it was in order to look at the 1895 California case, Redfield, and ascertain if it was indeed the dictum ascribed to it by Justice Ailshie.

A review of California jurisprudence demonstrates that the statement alluded to was not dictum, and on the contrary, contains very helpful language. Moreover, Redfield has been cited in California over fifty times, and in other states as well. In Redfield the surviving husband and two minor children brought suit to recover for the mother/wife’s death. The contention was made that, California being a community property state, the husband was the only heir of the deceased wife, and the children were not heirs at all, because they would take nothing. Their statute, § 377 of the Civil Code, is identical to our § 5-311 as it was in effect in 1923, and so remained until 1984. In 1923, it was § 4100 of the Revised Code. As stated above, the language of the California court is helpful, and it is not at odds with the language in Whitley:

We think, however, that appellant is mistaken in its construction of section 337, Code Civ.Proc. The damages recoverable are not the product of the community effort or of community accumulations, nor does the word “heirs,” as there used, refer to those persons who would succeed to the money so recoverable if it had been in the possession of the community, as community property, at the time of Mrs. Redfield’s death; but the word is used in its common-law sense, and denotes those who are capable of inheriting from the deceased person generally, and without the limitation resulting from statutes relating to the distribution of community property.3 ... Her personal representative might have maintained the action, but in such case the damages recovered would not have belonged to her estate, nor been liable for her debts; and the same thing would be true if the husband had died from similar injuries, and the recovery had been obtained by his personal repre*621sentative. The recovery is for the injury inflicted upon the plaintiffs personally, and not for injuries inflicted upon her; and the word “heirs” in the statute is intended to limit the right of recovery to a class of persons who, because of their relation to the deceased, are supposed to be injured by her death. Redfield, supra, 42 Pac. at 825-26.

As recently as 1974, the California Supreme Court, en banc, “deemed” it desirable to pause long enough to clarify some apparent misconceptions as to who can bring a wrongful death action under its § 377, our equivalent then being § 5-311, and in doing so, revisited Redfield, and discussed the requirements of “actually” receiving property from the decedent.

The question in that case was whether natural children were required to be in a position to actually inherit from their deceased mother in order that they might qualify as heirs within the meaning of section 377. In holding that it was not necessary for such children to be entitled to receive any share of the decedent’s estate, this court noted, inter alia, that a recovery in a wrongful death action was not a recovery of a portion of the estate or for the injuries inflicted on the decedent, but rather for injuries actually suffered by the heirs of the decedent by reason of the latter’s death. It was in this context that the court spoke of those who were “supposed to be injured” by the death of the decedent____
It seems without dispute that the class of those who suffer the greatest loss upon a wrongful death are the heirs of the deceased. Heirs are those who, as a class, stand in the closest relationship to a deceased. Steed v. Imperial Airlines, 12 Cal.3d 115, 121-25, 115 Cal.Rptr. 329, 333-34, 524 P.2d 801, 805-07 (1974) (emphasis added; footnote omitted).

What comes out of this reading is that children do not have to actually inherit property in order to be heirs for the purpose of bringing a wrongful death action; nor is it required that the decedent died owning any property. “Heirs are those who, as a class, stand in the closest relationship to a deceased.” Id. 115 Cal.Rptr. at 334, 524 P.2d at 806. As initially said in Redfield, they must have the status of being “capable of inheriting from the deceased person generally____” Redfield, supra, 42 Pac. at 825. “Generally” meant to the Whitley Court, and to the Redfield Court, under the general laws of intestate succession — not the special succession statutes which deal with community property— as was made clear in the first sentences of both the California Code and the Idaho Code: “When any person having title to any estate not otherwise limited by marriage contract, dies,____” The 1895 and 1923 judicial definitions of heirs made by, respectively, the courts of California and Idaho have guided wrongful death actions thereafter.

In Manion v. Waybright, 59 Idaho 643, 660, 86 P.2d 181, 188 (1938), this Court upheld a $15,000 damage award in a wrongful death action brought by a widow and the four children of the decedent and widow. In Lebak v. Nelson, 62 Idaho 96, 115, 107 P.2d 1054, 1062-63 (1940), this Court affirmed a $23,535 damage award in another wrongful death action brought by three children of the decedent and the widow. In specifically affirming that part of the award which was made to the children, the Lebak Court stated: “Each of the children lost the love, care, direction, counsel, education and support of the father. Breaking the verdict down into three parts, each child received less than $7,850.” Id. at 115, 107 P.2d at 1062.

In Hepp v. Ader, 64 Idaho 240, 245-46, 130 P.2d 859, 862 (1942), this Court acknowledged again the fact that children can sue for the wrongful death of one or both of their parents:

It is not necessary, in this state, for a husband or wife, in order to recover for the death of the other, caused by wrongful act or negligence, to plead or prove damages arising from loss of services, food, clothing, shelter or anything else which may be measured in dollars and *622cents. The same rule applies in cases where a parent sues for the death of a child or the child for the death of a parent. Pecuniary loss, in cases of this kind, will be presumed upon proof of death, caused by the wrongful act or negligence of the defendant, and the relationship of husband and wife, or parent and child, existing between the plaintiff and the deceased. (Emphasis added; citations omitted.)

In 1973 Justice Donaldson, speaking for a unanimous Court stated: “The wrongful death statutes now in effect4 provide a cause of action to the surviving spouse and issue of a deceased married minor.” Harrigfeld v. District Court of Seventh Judicial District, 95 Idaho 540, 542, 511 P.2d 822, 824 (1973), citing I.C. §§ 5-310 and 5-311. In Harrigfeld, this Court held that a widow and the one child of the deceased and widow “were the proper parties to bring an action for [the deceased’s] wrongful death.” Harrigfeld, supra, 95 Idaho at 545, 511 P.2d at 827.

It is clear, then, that for over the past 100 years — Idaho’s Wrongful Death Act was enacted in 1881 — children have been proper parties plaintiff where the wrongful death was of a parent.

It is significant that in all of the cases decided after Whitley, the Court was totally unconcerned with whether there was a separate inheritable estate that would put dollars in the pockets of heirs other than the surviving spouse. There is nothing whatever in the case law, in statutory law, or in common sense which requires an heir to receive some estate in order to have the status of an “heir” for purposes of I.C. § 5-311, our wrongful death statute. It is the mere fact of being an heir who is capable of taking under the intestate succession laws which entitles a surviving wife and/or child to come within that close relationship to the wrongfully killed decedent which gives them the right to pursue a damage claim.

Not until Schiess was decided were children ever held to be improper parties plaintiff. Schiess relied upon Everett v. Trunnell, 105 Idaho 787, 673 P.2d 387 (1983), which in turn relied upon Hogan, supra. A review of those cases demonstrates that Schiess was in error.

Everett properly cited Hogan, supra, for the principle that heirs under Idaho’s Wrongful Death Act are defined as being those “persons who are entitled to inherit the property of an intestate, according to the laws of intestate succession in effect as of the date of death.” Everett, supra, 105 Idaho at 789, 673 P.2d at 389. Therein the Court accordingly held that the parents of the decedent were not heirs, because the decedent left “both a surviving spouse and issue. Id. at 790, 673 P.2d at 390. In discussing the purpose of Idaho’s Wrongful Death Act, Justice Bakes, writing for a unanimous Court, said the following which is significantly similar to the language of the California Supreme Court in Steed v. Imperial Airlines (quoted supra, at 621, 747 P.2d at 30):

The state objective under our present wrongful death scheme is clear. Our legislature wished to change the common law to allow recovery for wrongful death, while at the same time limiting that recovery to those persons most likely to suffer a loss. The objective was to allow suit by those persons most likely to be affected by the untimely death of a decedent, such as a surviving wife and child. This limitation on the statutory cause of action is reasonable and bears a rational relationship to a legitimate state objective. Everett, su*623pra, 105 Idaho at 790, 673 P.2d at 390 (emphasis added).

As stated above, a review of Everett and Hogan make clear that neither had to decide whether children are proper parties plaintiff in wrongful death actions, and it was not until Schiess that the issue was decided, albeit incorrectly. Schiess went awry of the issue because it (1) failed to consider the 100-plus years in Idaho during which children were recognized as plaintiffs- in a wrongful death action, (2) failed to recognize that the significant changes in Idaho’s intestacy statute in 1971 did not alter the definition of heirs as being persons entitled to inherit, but only required a certain size of estate before there was anything for children to inherit, and (3) failed to observe that the legislature stated no purpose thereby that would preclude a child’s status as an heir for purposes of wrongful death actions. A second analysis of these areas inevitably leads to the conclusion that Schiess was in error.

A review of the briefs and record in Schiess shows that neither party nor the district judge were aware that the 1971 Uniform Probate Code defined “child” — an important clue to a correct decision in that case. The word was defined in absolute conformance to language in Redfield, supra, and in Whitley, supra. Section 15-1-201(4) reads: “ ‘Child’ includes any individual entitled to take as a child under this code by intestate succession____”5 The Uniform Probate Code sets forth the purposes of the Code:

15-1-102. Purposes — Rule of construction. — (a) This code shall be liberally construed and applied to promote its underlying purposes and policies.
(b) The underlying purposes and policies of this code are:
(1)to simplify and clarify the law concerning the affairs of decedents, missing persons, protected persons, minors and incapacitated persons;
(2) to discover and make effective the intent of a decedent in distribution of his property;
(3) to promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to his successors;
(4) to facilitate use and enforcement of certain trusts;
(5) to make uniform the law among the various jurisdictions.

Nothing therein even tends to suggest that the legislative understanding was that adoption of the Uniform Probate Code had as a purpose, or would be seen as precluding children as plaintiffs in wrongful death actions where the deceased parents state did not mount up to a certain amount of money. As mentioned in footnote 5, the definition of “heirs” therein speaks to the contrary.

It is readily understood why the legislature is not chargeable with an intent to change the previously accepted definition of heirs for purposes of the Wrongful Death Act when it adopted the Uniform Probate Code: the use of heirs in both contexts involves totally different concerns and issues. In Volk v. Baldazo, 103 Idaho 570, 573, 651 P.2d 11, 14 (1982), Justice Shepard, speaking for a 4-1 majority, stated the purposes of Idaho’s Wrongful Death Act — I.C. § 5-311 — as follows:

We deem it well settled that statutes authorizing actions for wrongful death are remedial in nature, designed to alleviate the harsh rule of common law that if an injured person died, his cause of action ceased to exist. Vaillancourt v. Medical Center Hospital of Vermont, Inc., 139 Vt. 138, 425 A.2d 92 *624(1980); Salazar v. St. Vincent Hospital, 95 N.M. 150, 619 P.2d 826 (1980). The actions authorized by I.C. §§ 5-310 and 5-311 are not actions arising from the “surviving” rights of a decedent, Russell v. Cox, supra, but rather are compensatory in character for the benefit of the named survivors. (Emphasis added.)

The Court in Schiess was in error in being persuaded that the significant changes to Idaho’s intestacy statutes in any way affected the intent and purpose of I.C. § 5-311 — which went wholly unmentioned in the Idaho version of the Uniform Probate Code. Assume that a father has transferred all property, real and personal, to his wife, and then purchases for cash a $500,000 policy of insurance on his life which names as beneficiaries those persons who on his death qualify as his heirs under the general intestacy laws of the State of Idaho. The policy does not run to his estate but to his heirs at law. Only those who so qualify under the law will receive checks from the insurance company. His children will be in that class, notwithstanding that none of them will inherit a dime from his estate — because he has none. This is so because heirs are persons who are entitled to inherit according to the laws of intestate succession in effect as of the date of death. Everett v. Trunnell, 105 Idaho 787, 673 P.2d 387 (1983) (Bakes, J.). Similarly, the wrongful death statute declares who qualify as heirs at law, and has nothing to do with an actual probate proceeding.

If it were needed, a pertinent 6-1 decision of the Montana Supreme Court, released two and one-half months prior to Schiess, but not available when the briefs of the parties were filed, now relied on by the Nebeker children, sustains backing away from Schiess. With facts virtually identical to those before us, the Montana Court forcefully stated its reasons as follows:

All statutory construction by courts is an attempt to search out the will of the legislature. Did the legislature intend in this case, by an indirect but overwhelming stroke, to cut off forever the time-honored rights of children to recover damages for the wrongful death of their parent? If such was the intent of the legislature in 1974 when the Uniform Probate Code was adopted, it is the best kept secret of the decade. Not a single word was uttered in debate, in the legislature, in the press, or by the legal scholars who proposed or propounded the code, and sponsored it in the legislature and in seminars, that the code severed the rights of such children. Tens of actions for wrongful death damages have been brought by or on behalf of children before and since the adoption of the Uniform Probate Code, and yet no legal writer has sounded the tocsin that a legal upheaval of such earthquake proportions in tort damages actions had occurred.
We choose to rule that such was not the intention of the legislature. In the monumental task of adopting the Uniform Probate Code, it is remarkable that so few anomalies have occurred. The legislature was careful to guard from conflict the subjects with which the Code was concerned, probate, guardianship and estate proceedings. The Code states:
“72-1-106. Uniform Probate code to take precedence.6 Should any provision of this code conflict with any provisions of other statues of the State of Montana relating to probate, guardianship or other subjects incorporated in this code and such other statute or statutes was or *625were adopted prior to the enactment of this code, the provisions of this code shall be deemed to be controlling.” (Emphasis added.)
It was the apparent intention of the legislature that the Code should control with respect to its inherent subjects of probate, guardianship and estate matters. It left open the effect on statutes involving other subjects not intrinsic to the Probate Code.
Therefore, until the legislature specifically tells us otherwise, we will recognize the historical right of the issue of a decedent to join with their surviving parent to recover damages in a single wrongful death action to the extent permitted prior to the Uniform Probate Code. We are confident that this is what the legislature intended. Johnson v. Marias River Electric Co-op, Inc., 687 P.2d 668, 671-72 (Mont.1984). (Emphasis added.)

In addition to the majority opinion of the Montana Supreme Court, consisting of Justice Sheehy, Harrison, Shea and Gulbrandson, there was a separately concurring opinion consisting of Justice Morrison, joined by Justice Weber, which goes as ignored in the opinion authored by Justice Bakes as is the Montana majority opinion. This second Montana opinion is as equally persuasive as the majority, and should merit this Court’s attention. The two cases, Montana’s and Idaho’s, arise in the exact same context. Justice Morrison wrote:

I concur in the result. As the majority opinion correctly notes, section 27-1-513 MCA, known as the wrongful death statute, has been with us since 1877. At the time of its enactment the decedent’s natural children met the statutory definition of heirs. Therefore, it is apparent that legislative intent was that children would be eligible for damages under the language of the wrongful death statute. When the Uniform Probate Code was enacted in 1974, the intestate succession was changed so that, where there was a surviving spouse, the children did not take. If the wrongful death statute had been considered by the legislature and amended or reenacted following the change in definition of heirs resulting from enactment of the Uniform Probate Code in 1974, then an argument could be made that the legislature intended to change those eligible for benefits under the wrongful death statute. However, such has not been the case here. 687 P.2d at 672.

The Montana Court was faced with a much more difficult proposition than this Court in reconciling the provisions of Montana’s version of the Uniform Probate Code with their wrongful death statute. First of all, it is to be noted and kept in mind that Montana is not a community property state, and Montana has never had a statute such as our former Rev. Code § 14-113, which, as discussed earlier, provided that the surviving spouse automatically succeeded to one-half of all community property, with the decedent’s one-half subject to testamentary disposition with limitations as to whom the testator could favor.

All property in Montana, prior to its adoption of the Uniform Probate Code, was succeeded to under the identical general statute of intestate succession which we had in Idaho. Former 1947 R.C.Mont. § 92-403(1) is identical to former I.C. § 14-103(1). So, just as in Idaho, Montana children were in a class of those persons capable of inheriting from a deceased parent.

Montana’s version of the Uniform Probate Code, however, is not identical to Idaho’s version. Obviously, nothing therein is contained which, like I.C. § 15-2-102(b), deals with the intestate succession to the decedent’s share of community property. Unlike I.C. § 15-2-102, 1947 R.C.Mont. § 72-2-202 omits, as a class of persons who are entitled to share in a deceased parent’s estate, all children who are issue of the surviving spouse and the decedent. This, of course, was a drastic change in Montana laws governing intestate succession. At the same time, however, where a decedent left issue by a former marriage, the Montana Uniform Probate Code left intact, as a class of heirs entitled to take, children or grandchildren of the decedent by a former spouse — thus leaving the law *626of intestate succession in Montana almost as it had existed for over a hundred years.7

It was against that backdrop that the Montana Supreme Court considered the stated purposes of the Uniform Probate Code (identical to Idaho’s) and concluded that the legislature could not be charged with any intent to deprive any children (more often than not minors, and in that case the children were minors) of their cause of action under Mont.Code Ann. § 27-1-513.

The Montana court also may very well have had in mind the incongruous situation where to John Doe and Jane Doe, Montana residents, were born two children, Pat and Mike, aged 3 and 5, at which time the parents divorced. John then married Betty, and this couple, too, lived in Montana and begot one child, Lisa, who was six months old when John Doe was struck down and killed by a drunken driver. Pat and Mike were then aged 5 and 7. John, having not made a will, died intestate. It would be a strange and suspect application of the law which would result in Pat and Mike being able to pursue a wrongful death claim for the death of their father, but denying that same right to Lisa, simply because under the Montana version of the Uniform Probate Code she was not included in the class entitled to inherit in a probate proceeding. The Montana Court reached a commendable result in a well-reasoned opinion which, had it been available to us, would have been a guiding light at the time of Schiess.

The net result is that Betty Doe, as surviving spouse, receives in probate one-half of the estate; Pat and Mike receive and split one-half as such children, not being issue of Betty but of Jane. Lisa gets nothing out of the estate and, if Schiess had become law in Montana, would not have qualified as a wrongful death plaintiff.

As for the philosophy of today’s majority, it may truly be said that continued application of Schiess, other than for the timely intervention of the legislature, would have destroyed the right of all minor children in Idaho to recover damages for the loss of a parent unless that parent happened to be well-endowed with separate estate.

Now knowing the legislature’s disenchantment with Schiess and now having the benefit of the Montana court’s opinion, and having had its attention drawn to the California Steed case, the majority’s insistence on perpetuating this second gross miscarriage of justice on minor children is intolerable. There is no excuse.

III.

A Critique of the Majority Opinion

The majority offers no explanation for its refusal to overrule Schiess, as requested by the Nebeker children, whose brief accurately asserts that the defendants have not shown that any other jurisdiction has cut off the right of a natural child to recover damages in an action for the wrongful death of a parent.

The best argument that I have heard, and it is so pitiful that I am nigh brought to weeping, is that the legislature has overruled Schiess, for which reason this Court should not overly concern itself with letting this case stand, i.e., why overrule an outrageous judicial decision which other than for the Nebeker children will not visit misfortune on any future child plaintiffs?

That philosophy undoubtedly stems from this passage where Bakes, J., is strangely not as precise as is ordinarily the case:

*627Appellant contends that children, until Schiess, had always been considered proper parties plaintiff to an action for the wrongful death of one of their parents. In “some” cases prior to Schiess children, as plaintiffs, did recover damages under the wrongful death statute for the death of a parent. E.g. Hepp v. Ader, 64 Idaho 240, 130 P.2d 859 (1942); Lebak v. Nelson, 62 Idaho 96, 107 P.2d 1054 (1940); and Manion v. Waybright, 59 Idaho 643, 86 P.2d 181 (1938). However, in none of those cases were children permitted to recover damages under our wrongful death statute when it was determined that they were not “heirs” under the intestate provision of the probate code at the time of the death of their parent. Not one single case since the adoption of our wrongful death statute has held that children who did not qualify as “heirs” under the intestate succession law were, nevertheless, considered to be “heirs” for purposes of the wrongful death statute. While not every wrongful death case has addressed the issue, every case that did has uniformly held that claimants, whether children, spouses, parents or other heirs, qualify or do not qualify as proper parties plaintiff solely on the strength of their qualifications as “heirs” under the intestate succession provisions in effect at the time of the wrongful death of the deceased. Majority Op., pp. 611-612, 747 P.2d pp. 20-21.

The passage will immediately remind the reader of the current beer ad featuring Yogi Berra. Why? — because it does not say anything, but sounds as though it does.

Justice Bakes’ review of the case law is seriously flawed. He argues that Idaho courts have cultivated an ancient tradition in determining who are heirs for purposes of our wrongful death statute, I.C. § 5-311. He cites Whitley for the proposition that heirs are to be determined by reference to the statutes of descent and distribution in effect at the time of the decedent’s death. He contends that this reference is accomplished by determining if a potential heir will take actual dollars — no dollars, no plaintiff’s standing in a wrongful death action.

This is an inaccurate, latter-day judicial gloss on the case law between Whitley (1913) and Hogan v. Hermann (1980). In Whitley, Justice Ailshie, at 23 Idaho 662, 132 P. at 127, says simply: “Our statute defines who shall inherit the property of a deceased person. Those persons are his ‘heirs,’ and our statute, sec. 4100 [now I.C. § 5-311], authorizes the ‘heirs’ of a deceased person or his personal representative to maintain an action such as the one at bar. In our opinion, those heirs are statutory heirs rather than common-law ‘heirs.’” (Emphasis added.) The case does not say that if the intestacy statute is changed by future legislatures, then Idaho courts are bound to apply the new statutes in order to determine who may maintain a wrongful death action. The case does not say that one must refer to the statutes in effect at the time of decedent’s death. This language is added by Justice Bakes.

The judicial gloss underlined above was added in Hogan, 101 Idaho at 895, 623 P.2d at 902. However, even in that case, where the Court applied the former I.C. § 14-103, there was no determination made of the existence of separate property, if any, which is necessary if parents are to share in the estate. Surviving the deceased in Hogan were her parents and husband.

The “ancient tradition” advanced by Justice Bakes really dates only from his own opinion in Everett v. Trunnell, 105 Idaho 787, 673 P.2d 387 (1983). There the Uniform Probate Code was used for the first time to close the courthouse door on parents who were plaintiffs in a wrongful death action. See, Everett, supra, 105 Idaho at 790, 673 P.2d at 390.

The precise application of the Code advanced here surfaced only with the unfortunate decision of Schiess v. Bates, 107 Idaho 794, 693 P.2d 440 (1984). For the first time, the Court required plaintiffs to allege and prove an estate of separate property. None of the earlier cases made this requirement despite the fact that the former statute, I.C. § 14-103, required a separate estate in order for children to *628take. Powell v. Powell, 22 Idaho 531, 126 P. 1058 (1912). Schiess thus violates the spirit of Whitley and the intent of I.C. § 5-311.

Justice Bakes’ opinion is likewise deficient in its interpretation of the legislative intent which guided the adoption of the Uniform Probate Code in 1971. He states that the legislature intended that the wrongful death statute would be applied “as it always had been, vis. ‘heirs’ would be determined by reference to the intestate succession provision in effect at the time of death.” Since, as explained above, this judicial gloss was added by the Hogan Court in 1980, Justice Bakes is improperly attributing clairvoyance to members of the 1971 legislature. With Hogan, Everett, and Schiess, our Court lost sight of the fact that all Justice Ailshie was doing in Whitley was gratuitously distinguishing statutory heirs from common law heirs. He was not decreeing, nor did he have any such authority to so decree, that future plaintiffs were bound by any legislative amendment of the intestacy statutes.

At page 611, 747 P.2d at page 20, the majority opinion correctly states that the Nebeker children contend that “until Schiess, children had always been considered proper parties plaintiff to an action for the wrongful death of one of their parents.” That reads well enough. But then, get this next line, “In some cases prior to Schiess, children, as plaintiffs did recover damages under the wrongful death statute for the death of a parent.” And the good Justice cites three cases, Hepp v. Ader, Lebak v. Nelson, and Manion v. Waybright. The Justice then goes on to add this truly remarkable assessment of those cases which convinces him that “... in none of those cases were children permitted to recover damages under our wrongful death statute when it was determined that they were not ‘heirs’ under the intestate provision of the probate code at the time of the death of their parent.” Hepp v. Ader is no stranger to me or to Justice Bakes.

The deceased parent there was a 56-year-old wife, who was a mother of two grown daughters, only one of whom joined her father in bringing suit. The plaintiff daughter was 33-years-old, married, and living with her own mother, and she did not testify. The Court, per Justices Ailshie, Morgan and Givens, set aside the daughter’s judgment on a $1,500 verdict, based on grounds of lack of evidence supporting damages. What bearing that case has on the claim of the Nebeker children is beyond me. The case makes no mention of either grown daughter being not permitted to bring an action because they were not heirs, and clearly one daughter did do so.

In the Lebak8 case a widower father was killed, leaving minor children aged 10, 9 and 8. They brought suit against the defendants through a court-appointed guardian, and recovered a judgment. That case too, makes no mention of any other child being disenfranchised of a right of action on the basis of not being an heir. In fact, the Court’s opinion did not even deem it necessary to mention that this was a wrongful death action, did not mention the statute itself, and did not mention that the three little children were intestate heirs of their deceased father.

In Manion v. Waybright, 59 Idaho 643, 86 P.2d 181 (1938), the plaintiffs were the widow Eva Manion and the four minor children of the deceased William Manion. The Court again did not deem it necessary to spell out that this was a statutory wrongful death action, did not mention the statute, and did not mention that the five plaintiffs were under the Idaho intestate statutes of general succession of the heirs of the deceased husband and father. The action was simply mentioned as the damage action, which it was. Counsel involved in the case, three of whom were well known to me and to other practitioners in North Idaho, were Ezra Whitla and E.T. *629Knudson for the defendants, and N.D. Wernette and W.B. McFarland for the decedent’s heirs. Mr. Wernette and Mr. Knudson would later both serve as Justices on this Court. In short, counsel were learned and able. If there were other children in that case who were not permitted, i.e. were dismissed on a determination that they were not heirs, such was never mentioned in the Court’s opinion. Quite the contrary, counsel in that case were not pettifoggers, and all of them knew without looking at the statute that children, and especially minor children, had forever been prime plaintiffs in an action brought for negligence or willfulness in the killing of a parent. Most, if not all, of the Idaho cases reflect the simple indisputable fact that any person out of law school has known without resorting to the statutes, that children have been, at least up until the Schiess aberration, proper plaintiffs to bring suit for the death of a parent, and that minor children are the children who will be most likely to suffer a loss, to borrow again from the words from Bakes, J., in Everett v. Trunnell.

In the paragraph above excerpted from the majority opinion, after misstating the content of Hepp v. Ader, and the content of Lebak v. Nelson, and also the content of Manion v. Waybright, he favors us with the statement that:

Not one single case since the adoption of our wrongful death case has held that children who do not qualify as “heirs” under the intestate succession laws were, nevertheless, considered to be “heirs” for purpose of the wrongful death statute.

Although, as I earlier intimated that this language smacks of a genuine Yogi Berraism, and not doubting that it is wholly inadvertently so, it can only be taken by the uninformed reader as a message from Bakes, J., that in his review of the cases there have been no cases where a child who did not qualify as an heir under the general intestate laws was permitted to be a plaintiff. Of course, the following are not uninformed readers: not counsel for the Nebeker children, not Justice Huntley, not this writer, and certainly not Justice Wernette as an attorney, or Justice Knudson as an attorney, nor any attorney. Yet Bakes, J., insists that there have been only “some” children, prior to Schiess who were allowed to be plaintiffs, and did recover damages. And apparently, two other members of the Court subscribe to such deceptive meanderings. Contrary to what Bakes, J., implies, the truth is that there is not a reported case where any child was ever dismissed as a party plaintiff in an action brought to recover for the wrongful death of a parent. It would be my pleasure to donate $500.00 to any charity of Bakes, J.’s choosing, in his name, if he can supply just one case, prior to Schiess, where a child was so deprived of his constitutional rights to pursue a right of action statutorily conferred upon him.

In the majority opinion on page 612, 747 P.2d on page 21, literary license is taken to indulge again in the fancy that the Everett case was a probate proceeding, i.e. “the parents would not inherit any portion of the intestate estate of their child____”

This Court’s concern in Everett did not involve the decedent’s estate — nor do we know that there was any estate — nor did we know if it was separate property or the community property of the husband and wife before the husband’s death. As to the community property, if any, such would be limited by the marriage contract, as per the language of the Whitley case, and is not within the purview of the general intestate laws — either prior to the adoption of the 1971 Uniform Probate Code, or afterward.

Part (a) of § 15-2-102 is the 1971 version of the general intestate statutes. Under subparagraph (2) thereof, a surviving parent simply is not an heir where the decedent left issue surviving him. How much more simply can a statutory provision be stated? Moreover, prior to the adoption of the Uniform Probate Code, under the general intestate provisions of I.C. § 14-103(1) formerly and at the time of Whitley, Revised Code § 5702(1), any time there was even one child living, the parents did not qualify as heirs. Only under subparagraph (2) did the parents qualify — which was when the decedent left no issue, then the *630parents came in to share with the surviving spouse.

Our opinion in Everett made that clear. Counsel for the plaintiff parents made no pretense that the parents qualified as heirs —but rather experimented on creating a new theory of recovery. The Court was not persuaded to that new theory, attorney fees were assessed against the Everetts, and no law was made. It should have been a short opinion, needing only to say, as it does, that “Under this statutory scheme, where the decedent leaves both a surviving spouse and issue, parents of a decedent are not entitled to inherit any property,” and “Not being ‘heirs’ they have no cause of action under I.C. § 5-311 for their son’s wrongful death.” Everett, 105 Idaho at 790, 673 P.2d at 390.

But, before announcing that inescapable conclusion, and apparently still smarting from the four-member majority’s rejection of his single action theory espoused in his dissenting opinion in Hogan, beginning at p. 789 of 101 Idaho, and at p. 389 of 673 P.2d, Bakes, J., brought to the fore that non-issue:

The primary issue in this case is whether these particular plaintiffs can maintain this wrongful death action, particularly in light of the fact that these plaintiffs failed to join in the action brought by the decedent’s spouse. (Emphasis added.)

The underscored non-issue was not further again mentioned, and played no part in our judgment, which was unanimous other than the award of attorney fees for a frivolous appeal. It became necessary to point out in my separate concurring opinion, that Bakes, J.:

[I]ncorrectly today refers to Whitley v. Spokane Ry. Co., 23 Idaho 642, 132 P. 121 (1913), aff'd 237 U.S. 487, 35 S.Ct. 655, 59 L.Ed. 1060 (1915), as standing for the proposition that the plaintiffs in this case cannot “maintain this wrongful death action particularly in light of the fact that these plaintiffs failed to join in the action brought by decedent’s spouse.” Neither Whitley nor Hogan v. Hermann so held, and on the contrary, in both of those cases there were two suits. Bakes, J., with no one joining, espoused the single action theory and may be seen in his today’s opinion as again espousing his own previous view. Moreover, in so doing, seemingly there is an abdication of his sometimes stance that the Court should not decide cases on issues which were not presented to the trial court. Defendants’ motion was not predicated upon a single action theory, nor was that contention advanced in a supporting brief. The trial court, Judge Norris, did not rule against the appellants on that basis — nor should we — but on the grounds that they were not “heirs” as legislatively defined. 105 Idaho at 791, 673 P.2d at 391.

What Justice Bakes wrote in Everett relative to his single action theory, while basically uncalled for and improper, did not in and of itself cause any difficulty in the ensuing Schiess case. It does, however, demonstrate his desires as to how long-existing case law may be distorted into conformance with his own views. To his credit, as mentioned above, he did then recognize that the legislature’s objective in creating the cause of action for wrongful death “was to allow suit by those persons most likely to be affected by the untimely death of a decedent, such as a surviving wife and child.” 105 Idaho 790, 673 P.2d at 390. That same opinion correctly noted that such a suit had indeed been pursued by Kenneth Everett’s surviving spouse and child, and that the case was settled without going to trial. 105 Idaho 789, 673 P.2d at 389. That the child was a minor, and that defense counsel, Daniel T. Eismann of Homedale, and William J. Brauner of Caldwell did not plead any defense such as that the child was not a proper plaintiff because he did not actually inherit any property from his deceased father are matters of public judicial record of which this Court can judicially take notice. Equally so, we can judicially notice that Kenneth Everett died possessed of no separate estate whatever, and that the total value of the community estate of Kenneth and his wife was $11,000.

*631As mentioned earlier in this opinion, there has never been a case prior to Schiess where the parties or the courts have confused a probate proceeding (actually inheriting) with a wrongful death action (by an heir entitled to inherit).

Justice Huntley in his dissenting opinion has thoroughly explained how the Court went wrong in the Schiess case. Simply stated, it allowed itself to be persuaded that a person, be he a minor or a parent, is not an heir unless he actually comes into some property from, as there, a deceased father, and as in this case, a deceased mother. As stated that has never been the law, and the Schiess case should not be allowed to stand in the way of the Nebeker children.

Assuming that the two justices who join Justice Bakes in standing on the Schiess case do so only because it is of such recent origin, and to overrule it would be tantamount to having been not too careful in joining in the Schiess opinion, so be it, stare decisis should govern. But, are reasons why that case is not entitled to any benefit of that doctrine. The Schiess opinion never became final, a fact which was not known to me9 until inadvertently discovered on pulling volume 108 of the Idaho Reports to review Miller v. Farmers Insurance Co. of Idaho, at page 896 [702 P.2d 1356]. On that same page there is this order in the Schiess case, which speaks for itself:

No. 15239.
Supreme Court of Idaho.
July 23, 1985
ORDER
Prior report: 107 Idaho 794, 693 P.2d 440.
The Court having entered an Order on June 18, 1985, 108 Idaho 715, 701 P.2d 663, recalling the REMITTITUR previously issued by this Court on January 2, 1985, and granting Appellants’ PETITION FOR REHEARING and counsel for the parties having filed a STIPULATION AND ORDER OF DISMISSAL on July 1, 1985; and the Court being fully advised; therefore, good cause appearing,
IT IS HEREBY ORDERED that counsel’s STIPULATION for dismissal of PETITION FOR REHEARING be, and hereby is, APPROVED.
IT IS FURTHER ORDERED that Appellants’ PETITION FOR REHEARING filed June 18, 1985, be, and hereby is, WITHDRAWN and the REMITTITUR shall reissue as of the date of this Order.

My curiosity whetted, it was in order to turn to page 715 of 108 Idaho [701 P.2d 663], where this order is found:

No. 15239.
Supreme Court of Idaho.
June 18, 1985
Prior report: 107 Idaho 794, 693 P.2d 440.
The Appellant having lodged a PETITION FOR REHEARING on April 5, 1985, and supporting BRIEF having been lodged April 10, 1985, of the Court’s Opinion filed December 20, 1984; and a REMITTITUR having been issued by this Court on January 2, 1985, and the Court being fully advised; therefore, good cause appearing,
IT IS HEREBY ORDERED that the REMITTITUR issued by this Court on January 2, 1985, be, and hereby is, RECALLED.
IT IS FURTHER ORDERED that the PETITION FOR REHEARING and BRIEF which were previously lodged with this Court shall be filed as of the date of this Order.
IT IS FURTHER ORDERED that Appellant’s PETITION FOR REHEARING be, and hereby is, GRANTED and Respondents shall file a Brief in response to Appellant’s BRIEF filed in support of PETITION FOR REHEARING within twenty-eight (28) days from the date of this Order. Any Reply Brief by Appellant shall be filed within fourteen (14) days from the date of filing of Respondents’ Brief.

*632What these two orders tell me is that the Remittitur was recalled, this Court resumed jurisdiction, a petition for rehearing was GRANTED, a briefing schedule for respondent was set, and that for some reason the rehearing was no longer required. To satisfy an innate curiosity the original file in the clerk’s office was examined, and the stipulation referred to was found to contain this language, “the matter having been compromised and settled ...” after the rehearing had been granted. The stipulation was submitted by Merrill and Merrill, Chartered, attorneys for defendants and by Isaac MacDougall for the plaintiffs. With it was submitted a proposed order, as follows:

ORDER
UPON THE FOREGOING STIPULATION and good cause appearing therefor:
IT IS HEREBY ORDERED that the above entitled matter be, and the same is hereby dismissed with prejudice to bringing of another action and with each party to bear their own costs.
DATED this_day of June, 1985.

Why the action was not dismissed as the parties intended, there is no way of knowing. Not having sat in that case, I was not privy to what was taking place.

With the matter having been compromised and settled, after a petition for rehearing had been granted, it is my understanding, based on experience on this Court, that the issued opinion would have no precedential value, and should not have been published. A like circumstance was the case of Lystrop, Hatch, Packer, and Dance, individually and on behalf of all architecture students as a class v. The Idaho State Board of Education, S.Ct.No. 12012. This Court’s 4-1 opinion issued March 4, 1977, reversing the Hon. Arthur P. Oliver, District Judge of the District Court, Sixth Judicial District State of Idaho, Bannock County, whose ruling was in favor of the students. The plaintiffs petitioned for a rehearing, which was granted. Prior to the rehearing, the parties compromised their differences, and the Court was so advised. The opinions in that case were not published in view of the controversy being settled without any reconsideration by the Court. The teaching of that experience is that a settlement by the parties after this Court has granted a rehearing operates to destroy the precedential value of the Court’s judgment and opinion, and the opinion will remain unpublished. If our system is to operate fairly and evenly, there cannot be one rule for Lystrop, and another rule for Schiess. Of course, without my bringing up the Lystrop circumstance, Bakes, J., along with Shepard, J., and Donaldson, J., were part of the majority of four in Lystrop, and conveniently forgetting it, prefer to believe themselves bound by Schiess, putting Lystrop out of sight, out of mind.

Better I say that Schiess be laid to rest. On top of everything else that can be said is wrong with Schiess, as pointed out in the defendant-appellant’s brief, at the time the case was moved out of district court by the appeal to this Court, although there had been filed a “motion to dismiss all of the individual Schiess children as being improper party plaintiffs, not being ‘heirs’ under I.C. § 5-311____ This motion has not yet been ruled on by the district court.” Defendant Bates’ brief, pp. 2-3. The conclusion of that brief requested that “this Court should direct the district court to dismiss the surviving children of Mr. Schiess as parties plaintiff____” Blue brief, p. 26. Worse yet, this unresolved question was not included in the Notice of Appeal, which stated only:

1. The above named appellant, Peter Bates, appeals against the above named respondents to the Idaho Supreme Court from that final order and judgment denying appellant’s motion for leave to file a third party complaint against the Estate of Laddie Ervin Schiess, Sr., entered in the above entitled action on the 3rd day of May, and reconfirmed pursuant to motion for reconsideration on the 10th day of August, 1983, the Honorable William H. Woodland, presiding.

The brief filed on behalf of the Schiess children clearly pointed to the Everrett v. *633Trunnell circumstance that the surviving spouse and child had indeed sued, and the action was settled without going to trial. The brief was only remiss in not emphasizing that it is the “entitlement to inherit” which qualifies an heir as a wrongful death plaintiff, and “actually inheriting” had never been judicially said to be a requirement. The brief relied more on the wife’s renunciation. The brief was remiss in failing to remind the Court of its often stated rule that it does not pass upon questions or issues which have not previously been submitted to the trial court.

When the rule is broken, and the issue is not ripe for appellate determination, a quality opinion would most likely be the exception, not the rule. On most of our appeals it is to be hoped that we first closely examine the views of the trial court. It is the trial judge, second in line only to the involved attorneys, who best knows what the controversy involves. Here, for whatever reason, this Court ignored that the appeal was from one specific trial court order, and obliged the defendant by passing on an issue not yet ruled on at trial, and did so without the benefit of adequate briefing, and obviously without any critical research on the issue involved. For certain, it was not simply a replay of Everett.

In sum, the only difference between the views entertained by Justice Bakes and myself are that he espouses the notion that for all wrongful deaths occurring after 1911, for a child to be an heir the decedent must have died possessed of some separate estate in order for the child to qualify under the Whitley case. I say that there is no case law to that effect, that Bakes, J., can point to none, and that Bakes, J., merely writes to make the reader think that there are some cases and he has found them.

When one considers the case of minor children, and further considers that the parents of minor children will be comparatively younger couples, it is a matter of general knowledge that 90 percent of those couples will have acquired no property which is not community property, and likely not much of that. It is such minor heirs whose case is before us today and the law established in Whitley sensibly observed that heirs are those persons who are entitled to inherit, not that there must be a probate proceeding where they do in fact inherit some separate estate from a deceased parent.

The view espoused by Justice Bakes has never been the law and, if it is to be the law for just this particular case, it disenfranchises minor children of their right of action notwithstanding that the admitted objective of the wrongful death statute “was to allow suit by those persons most likely to be affected by the untimely death of a decedent, such as a surviving wife and [minor] child.” Everett, supra, 105 Idaho at 790, 673 P.2d at 390 (Bakes, J.).

The indifference of those who join the opinion of Justice Bakes is both disheartening and frightening.

. Idaho’s Wrongful Death Act in 1913 — found at Rev. Code § 4100 — was originally enacted in 1881. See§ 192ofCCP. It has remained virtually the same ever since, with very minor changes occurring in 1972. See 1972 Idaho Session laws, ch. 177, § 2, p. 445.

. Our majority opinion in Hogan v. Hermann, 101 Idaho 893, 623 P.2d 900 (1980), proceeded on the same basis, i.e., that the general statute governing intestate succession, I.C. § 14-103(2) was the applicable statute, 101 Idaho at 895-96, 623 P.2d at 902-03, and determines who are heirs when there are no issue.

. The California court at this point simply ruled out the statute relating to distribution of community property and referred to only the common-law "sense” which was codified identical to Idaho, as noted in Steed v. Imperial Airlines, 12 Cal.3d 115, 115 Cal.Rptr. 329, 524 P.2d 801 (1974).

. The Harrigfelds were defendants in a wrongful death action arising out of the death of Dean Sallenger, aged 20 years, survived by a wife and child, who brought the action. At the time of Sallenger’s death, he was, under I.C. § 32-101, an emancipated minor, and the action was brought under I.C. § 5-311 rather than § 5-310, which at the time purported to give the cause of action to the parents of a wrongfully killed mmer. Only in 1972 did the legislature recognize that aged 20 males might marry and have issue, and amend the two statutes accordingly. This Court properly held that any legislation classification declaring different ages for attaining majority as between male and female was unjustified discrimination; hence, that Dean Sallenger was not a minor, and hence, I.C. § 5-311 was the applicable statute.

. The definition of "child” is to be noted more for who is excluded from the definition, to wit: "any person who is only a stepchild, a foster child, a grandchild, or any more remote descendant.” Similarly, "parent," subparagraph (32), is defined as "any person entitled to take ... by intestate succession ..and excludes "any person ... who is only a stepparent, foster parent, or grandparent." Moreover, subparagraph (21) defines "heirs.” " 'Heirs’ means those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent.” Definitely this was a recognition and continuation of the Whitley definition.

. The Idaho version of the Uniform Probate Code ch. Ill, 5.2.1971 at p. 237, commences with similar language:

"Be It Enacted by the Legislature of the State of Idaho:
The comprehensive recodification of the law of wills, decedents, estates, guardianships, and non-probate transfers is enacted as follows:” (emphasis added)
It is also well in order that the reader compare the Idaho version Statement of Purpose,I.C. § 15.1.102 with the Montana statute, Section 72-1-102, m.c.a. Neither Statement of Purpose shows any legislative intent to modify long-existing code provisions which provided actions for wrongful death.

. Montana Code Ann. § 72-2-202 reads:

Share of spouse. The intestate share of the surviving spouse is
(1) if there is no surviving issue or if there are surviving issue all of whom are issue of the surviving spouse also, the entire remaining estate; [does not apply]
(2) if there are surviving issue one or more of whom are not issue of the surviving spouse, as follows: [does not apply]
(a) if there is surviving only one such child [does apply] or the issue of one such child, one-half of the intestate estate;
(b) if there are surviving more than one such child or one such child and the issue of one or more deceased children, one-third of the intestate estate.

. Both Hepp v. Ader and Lebak v. Nelson should find favor with Justice Bakes. In Everett v. Trunnell, 105 Idaho 787, 673 P.2d 387, he wrote that the legislative interest was to limit recovery to those persons most likely to be affected by the untimely death of a decedent, and specifically mentioned a spouse and a [minor] child.

. As might have already been surmised, I did not participate in the Schiess case.