I dissent.
I reiterate the views expressed in my concurring opinion in Estate of Axcelrod, 23 Cal.2d 761, 769 [147 P.2d 1], The words in the will in the Axcelrod case which are held not sufficient to escape the revocatory effect of marriage after execution of the will were that the testator intentionally omitted all “heirs” not mentioned in the will and expressly disinherited them. In the present case the only words in addition to “heirs” are “heirs by reason of marriage or otherwise.” That is not sufficient as the word “heirs” alone would include an heir by marriage as well as by consanguinity and the use of “heirs” alone is not a sufficient mentioning under the Axcelrod case to disinherit a spouse married after the execution of a will. Estate of Kurtz, 190 Cal. 146 [210 P. 959] is to the contrary but that case, although distinguished in the Axcelrod case, was in effect overruled thereby. (See discussion 32 Cal.L.Rev. 213.)
The statute (Prob. Code, § 70) provides that if a person is married after the execution of the will, the will is revoked as to the after acquired spouse unless the spouse is in such way “mentioned” therein as to show an intention not to make provision for him or her. The latest general definition of “mentioned” is: “As a verb, ‘mention’ is defined in Webster’s New International Dictionary, 2d edition (1943), as ‘To make mention of; to refer to . . . casually; to specify, esp. by name; to name,’ and as a noun the word is employed to indicate ‘a speaking or notice, esp. in a brief or cursory manner; a specification, usually by name; casual introduction into speech or writing; naming, esp. incidentally.’” (Hunt v. Mayor & Council of Riverside, 31 Cal.2d 619, 626 [191 P.2d 426].) Specifically applied to section 70, various factors must be considered in determining the sufficiency of the words of mention to escape revocation. Having in mind the words used in Estate of Axcelrod, supra, 23 Cal.2d 761, the court *517there said: “A person who was then a stranger, both in consanguinity and affinity, and whose subsequent relationship was yet to be projected, could scarcely have been considered by the testatrix as an ‘heir,’ much less, a surviving husband. She said in her will, ‘I have intentionally omitted all of my heirs who are not specifically mentioned herein, intending thereby to disinherit them . . .’ (Italics added.) Insofar as the operation of section 70 of the Probate Code is concerned her intention is to be determined only as of the date of the execution of the instrument. (See Estate of Carter (1942), 49 Cal.App.2d 251, 254 [121 P.2d 540].) A man does not ‘omit’ the name of his child from a document if he has no child; a woman does not ‘omit’ her husband from her will if she has no husband in fact or in contemplation. . . .
“Mere general phraseology such as that which is employed in the will now before us cannot be construed to mention the appellant — a subsequently acquired husband — ‘in such way . . . as to show an intention not to make’ provision for him. He is not mentioned at all. The only word used which could possibly include him is the word ‘heirs.’ But at the time the will was executed the testatrix had no husband who could become an ‘heir.’ If she was at that time contemplating marrying anyone it may have been someone other than appellant. The will does not mention appellant by name or by contemplated relationship or otherwise in any way by which he can be identified as a particular person who was in her mind at that time. Since it does not identify him by name or by contemplated relationship, or designate a classification which shows on its face that it necessarily was then the intention of the testatrix to include therein a subsequently to be acquired husband, it cannot be held that such a subsequently acquired husband has been mentioned. . . .
“ ‘It would appear that the intention [if any] to make no provision for the future surviving spouse would have to be set out with greater certainty and explicitness than in the instant case if the revocation provided by section 70 of the Probate Code is to be averted, where, as here, there is no marriage contract and no provision for such survivor in the will.’ ” (Estate of Axcelrod, 23 Cal.2d 761, 767 [147 P.2d 1] ; emphasis added.) In Estate of Turney, 101 Cal.App.2d 720 [226 P.2d 80], the words used by the testatrix were that she had omitted to provide for “my heirs living at the time of my demise.” They were held insufficient to disinherit an after *518acquired spouse, the court stating: “ A party seeking to rebut the statutory presumption of revocation must bring himself within the literal terms of one of the exceptions. (See Corker v. Corker, 87 Cal. 643 [25 P. 922] ; Estate of Smith, 15 Cal.App.2d 548 [59 P.2d 854].) ” (Estate of Turney, 101 Cal.App.2d 720, 722 [226 P.2d 80] ; emphasis added.)
To the same effect are Estate of Rozen-Goldenberg, 1 Cal.App.2d 631 [37 P.2d 132], and Estate of Ryan, 191 Cal. 307 [216 P. 366].
From the foregoing it is and should be the rule that there is not sufficient mention of the after acquired spouse to prevent revocation unless, on the face of the will, the prospective spouse is named or if designated by a general term it appears that the testator or testatrix contemplated marriage. This gives meaning and effect to section 70 and prevents its evasion by general words which do not indicate any real intention to disinherit an after acquired spouse because the question was never really given concrete consideration by the testator or testatrix.
I would, therefore, reverse the judgment.