ON DENIAL OF PETITION FOR REHEARING
BISTLINE, Justice,dissenting.
The Court’s opinion in Rice v. Miniver, 112 Idaho 1069, 739 P.2d 368, released in June of this year, 1987, in the first sentence acknowledges that it is a “wrongful death action” for the death of John Rice. The opinion itself does not state the names of the plaintiffs. The caption of the case informs only that the plaintiffs are Rosemary Rice, John Rice, Lori Rice, and Lisa Rice, and that the latter three Rices are minor children. Looking at the record, particularly the complaint, furnishes the information that the decedent whose death precipitated the law suit was John Wayne Rice, and the three children who lost their father were at the time of his death: Lisa, age 17 years; John, age 14 years; and, Lori, age 11 years. John Wayne Rice’s four surviving heirs-at-law sought $750,000 for “having been deprived of the care, love, companionship and support of their husband and father.”
The action was filed in September of 1982, and finally decided at the end of June in 1985, on a point of law, having to do only *634with the ownership of the road on which the decedent was motorcycling.
The complaint in the action named as defendants additional to those mentioned in the caption of this Court’s opinion the county of Bingham and the county of Bonneville, the road in question being partly in both counties. As the opinion shows, the plaintiffs were represented by a well-known and highly respected firm, Racine, Olson, Nye, Cooper & Budge. The opinion also shows that the defendant Miniver was represented by another well-known and highly respected firm, St. Clair, Hiller, Wood, McGrath, St. Clair & Baker; and the defendant Taylor Mountain Ski Area was represented by yet another well-known and highly respected firm, Holden, Kidwell, Hahn & Crapo. The opinion does not show that Bonneville County was represented by yet another well-known and highly respected firm, Peterson, Moss, Olsen, Meacham & Carr of Idaho Falls. Nor does it show that Bingham County was represented by the same firm which represented the defendant Miniver, the attorney of record being Mr. M.B. Hiller, with Mr. Marvin M. Smith of that firm taking part in trial court proceedings.
Bonneville County answered the complaint, and later moved for summary judgment. Miniver also moved for summary judgment. Later Bonneville County and the plaintiffs stipulated to a judgment of dismissal for Bonneville.
Of extreme significance is it that not one of these fine firms either by answer or by motion for summary judgment ever raised the defense that the three minor Rice Children were not proper persons to bring an action to recover just compensation for the loss of their father. Not a single defendant did so. The answer is not that the attorneys did not know the law, but that they did know it! Similarly the firm representing the minor children knew that they as well as their mother possessed a valid claim for the allegedly wrongful death of their father, and that by far the largest portion of the $750,000 damage claim would be that awarded the children, were the case to go to a jury which found liability.
But, sayeth the majority for this case of the Nebeker children, the law is, and has been since the 1971 Enactment of the Uniform Code, and until the amendment of I.C. § 5-311 in 1984, otherwise unless the deceased parent had a substantial estate.
Justice Bakes would agree, I am certain, that the lawyers in the firms mentioned are of great experience and ability in the law— probably as much or more so as many of us who sit on the other side of the bench. Such being so, he would, if he cared to reply, speculate, surmise, and presume that John Wayne Rice was a man of considerable wealth, and that his three children actually inherited some of his estate,1 and that it was separate estate over the amount of $50,000. But, if Justice Bakes’ surmise is in error, and Mr. Rice had no separate estate, and if his wife received all of his interest in the community property, then Justice Bakes would have to find all of those excellent attorneys who defended the Rice wrongful death action grossly negligent in not raising the defense that the children were without any right to sue for the death of their father.
As it is readily found out by taking judicial notice of the court records in Bingham County in the intervening almost two years from the time of John Wayne Rice’s death until the lawsuit was filed, his estate was probated, and the children received nothing. Under the views espoused by Justice Bakes, the firms representing the defendants in Rice v. Miniver, et al., can be delighted that they prevailed on the road— recreational trespass issues because, otherwise, they would all have faced the prospect of defending legal malpractice actions for not asserting the sure-winner issue that the children were not even entitled to sue. Similarly, where Justice Bakes speaks the law for the Court, Mr. Brauner and Mr. Eismann were prime targets for malpractice actions in settling the widow Everett and minor child’s lawsuit.
*635Touching upon personal experience twenty-five or so years ago, Dar Cogswell and I represented the three minor children of a young mother who was killed at a railroad crossing where the S & I Railroad passes over Highway 200, just north of the Sand-point city limits. This unfortunate mother worked for the support of herself and three children. She had no property, community or separate. It so happened that I also handled the probate of her estate, which was zero. On petition of the local mortician a probate proceeding was opened, the mortician was appointed administrator, he received and receipted for a check from Social Security which paid the standard amount for her burial expenses. The sole creditor’s claim of the mortician was extinguished by endorsement of the check to the mortician, and the estate was closed.
The lawsuit proceeded along with the railroad’s defense of no negligence being not bought by the jury, and the three minor children, all of whom were entitled to inherit from their mother — had she had any estate to be inherited — received a reasonable damage award for the loss of their mother. The action was brought solely by the children through a guardian ad litem. Harris v. S.I.R.R. Only in the most recent of years I learn that our clients had no right to bring the lawsuit, and that by sheer luck two reputable firms defending the railroad, one in Spokane, and one in Sandpoint, did not realize that, had they correctly read Whitley (against the same railroad, and possibly the same Spokane firm), the trial court on motion would have dismissed the action.
Another case for wrongful death in Bonner County is a reported case, Bell v. O’Connor, 94 Idaho 406, 489 P.2d 439 (1971). Virginia Bell’s mother was killed when a car she was driving was struck in Priest River city limits by an O’Connor truck and automobile transport trailer. She was the only minor child, and sued not only for her mother’s death, but for injuries to herself as well. The case was defended by an attorney reputed to be at the top of the list of capable trial attorneys in Idaho. The jury came in for his client. An appeal was taken where one of the main assignments of error was the admission into evidence of a local peace officer’s accident report which stated thereon that Ruth Bell, Virginia’s mother, ran the stop sign. The peace officer’s only source of information was the defendant’s driver. The Supreme Court on the appeal ignored an issue based on mathematical calculations that the truck driver could not have been going 25 m.p.h., as he testified, and also upheld the admission of the accident report — completely ignoring the statute which made it inadmissible.2
Hence, the defendant lucked out. Other than for that unfortunate admission of the accident report, Virginia Bell in all likelihood should have received a damage award. Defense counsel lucked out, too. Had Virginia prevailed, under the views of Bakes, J., counsel was remiss in not having her action summarily dismissed because, although entitled to inherit, she did not inherit. There was no estate to inherit, and hence no probate.
Notwithstanding all of the history of minor children’s wrongful death actions— much of it reported, Bakes, J., continues to sway two other members of this Court with dazzling footwork:
Appellant 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 pro*636bate 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 qualification as “heirs” under the intestate succession provisions in effect at the time of the wrongful death of the deceased. Majority Op. of June 1987, pp. 611-612, 747 P.2d pp. 20-21.
When Justice Bakes writes that “In some cases prior to Schiess children ... did recover damages ... for the death of a parent, we all know what he is inferring, namely that there are cases where they did not, i.e., did not even have the right to bring the action. That simply is not true. There are no such cases which precluded a child from suing for the death of a parent. My previous offer of $500 if Justice Bakes can produce such a reported case is now upped to $1000 — and open to all takers. Hopefully it will be a law student who earns the reward. But I caution against a great expenditure of time in a futile endeavor.
Justice Bakes goes on, after citing three cases, to say that in none of the cases were children permitted to sue when it was determined that they were not heirs under the general intestate laws. Remarkable! There was no such issue in those cases. What has the Justice said in that sentence? Nothing. A pure bit of sophistry, as is true with the rest of the paragraph. It says absolutely nothing, but is the backbone of the opinion by which he would have the reader believe that there have been eases where a child was denied entry to the courts because he could not qualify as an heir, where he diql not actually inherit anything, which was the unfortunate holding in the Schiess case. The true maxim is, however, that a child cannot avoid being an heir of a parent under the general intestacy laws, both now and forever since Whitley, and later when the Uniform Probate Code adopted the same definition.
The final sentence of the paragraph from Justice Bakes quoted above is interesting. The first case to discuss the issue was Whitley, and of it Justice Bakes is correct in observing that it addressed the issue. Most assuredly it did do so. It held that, although “Mother” Whitley was not an heir at law under Tennessee law, she was an heir under the Idaho statutes governing general intestacy, and hence qualified to sue for the death of her son, as was the wife. Of the many issues in that case (see over six pages of the contentions of the parties and authority relied upon at pages 644, 645, 646, 647, 648, 649, and 650 of 23 Idaho, 132 P. 121, and then read the Court’s discussion and disposition of them), no one contended that the “Mother” Whitley was not an heir of her deceased son. In fact:
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. (Subd. 2, sec. 5072, Rev. Codes.) 23 Idaho at 666, 132 P. at 145.
So much for the Whitley case. The concession simply recognized the plain language of § 5702(2) Revised Code.
The next case did not arise until Hogan v. Hermann, 67 years later. The plaintiffs in that action were the parents of the deceased Carol Jean McGrath in April of 1972, who was survived by her husband, and by the parents. She left no issue. 101 Idaho 894, 623 P.2d 900. The husband’s lawsuit for her wrongful death did not raise any challenge as to his being an heir entitled to bring suit, and it was settled.
The date of the accident and Carol Jean' McGrath’s death preceded in time the efú fective date of the Uniform Probate Code by tWo and one-half months. Otherwise *637put, the old code was still in effect, and applicable was I.C. § 14-103(2) — the same provision in effect in the 1913 Whitley case, then being § 5702(2) of the Revised Code. There was no contention raised that the parents were not heirs under the statute, and not entitled to bring suit. Other issues were involved which greatly disturbed Justice Bakes, but are not relevant in the application of the statute which declares who are the heirs of an intestate decedent.
An intervening case between Whitley and Hogan v. Hermann was Russell v. Cox, 65 Idaho 534, 148 P.2d 221 (1944). The deceased woman there was survived by no issue, and only by her mother and her husband, who were conceded to be under the statute the decedent’s heirs. There was no challenge to the mother’s entitlement to sue for her daughter’s wrongful death. The defendant, Cox, although an heir who would have had a right to sue, was not well-positioned to do so, because it was he who killed his wife, the daughter of the plaintiff.
So as with Whitley, and as with Hogan v. Hermann, here again was no issue drawn. The same statute was simply understood to mean what it said. Here, too, as in Whitley, and true also in Hogan v. Hermann, there was no mention of what the state of the decedent might have consisted of it there had been probate proceeding, and who got what. Nor should there have been.
Just prior to Schiess, there was one other case, Everett v. Trunnell. Here there was a child who survived, in addition to the decedent’s wife. The lawsuit brought by the wife and child was settled. Another suit was filed by the decedent’s parents. The district court dismissed it because they did not qualify as heirs under the provisions of the 1971 Probate Code which defines “heirs” and declared who would be such under the intestacy laws. Moreover had the prior code been in effect the parents would not have qualified as heirs. I.C. § 14-103(1). The lawsuit sought to create a common-law recovery in parents for the death of a son. With a statutory scheme in place, the effort failed. As noted in the earlier opinion, speaking for a unanimous Court, Bakes, J. wrote that heirs are defined “as referring to persons who are entitled to inherit the property of an intestate (sic decedent), according to the laws of intestate succession in effect as of the date of the death.” 105 Idaho at 789, 673 P.2d at 389.
Such are the cases where the issue arose and was contested. One case is Everett v. Trunnell. Where Justice Bakes cited Hogan v. Herman, for the above quoted statement, more properly he would have cited to the then applicable definition of heirs set forth in the Probate Code. Any issue of a man and/or a woman is issue, and is entitled to inherit.
As far as a probate proceeding is concerned, there may be some estate to inherit. If a person owns separate estate, and has no will, under the intestacy laws his children are his heirs, and will inherit from him. If the person wants a given child to take nothing, he must leave a will naming his beneficiaries and specifically naming any child who will take nothing, leave him nothing, and thereby disinherit him. Only in that manner can an heir be disinherited. What will he be? Easy, a disinherited heir, but nevertheless under the law his status is that of an heir. But that is a probate concern, and of no consequence in determining heirship for purposes of the wrongful death statute. Justice Bakes and I agree up to a point: we agree that Whitley held that heirs are persons entitled to inherit under the general intestacy laws. Where we cease to agree is where he says, relying on only the Schiess case, that a child is not an heir until the deceased parent left separate estate which he will come into. No case ever said that. Justice Huntley, who authored it, immediately disavowed it in his May 1987 opinion when he realized that he had been misled by what was written in Everett.
The wonder of it all is why Justice Bakes and his two other votes are so adamantly insistent upon depriving the Nebeker children of their right to seek damages. True, it happened in Schiess. But, as Justice *638Huntley recognizes, two wrongs do not make a right. One wrong was bad enough, but a second is unpardonable.
HUNTLEY, J., concurs.. To so speculate that the minor children actually inherited, one would have to surmise also that he had no will which devised everything to his wife.
. The holding which upheld the admission stood as the law until Owen v. Burcham, 100 Idaho 441, 599 P.2d 1012 (1979): "Hence, to the extent that Bell authorized the actual admission of an accident report as substantive evidence, it is overruled." At 445, 599 P.2d 1012.