I concur.
Decedent, Rush Todd, disposed of his estate by will as follows: “I hereby give, devise and bequeath all of my estate, . . . equally, share and share alike, to my said wife Inez Todd, and my said son, Addison Todd, or to the survivor of them.” In 1931, more than six years after the making of this will, Ridgeway Todd, son of Addison Todd and grandson of the testator, was born. No provision was made for him in the will. Addison Todd died in 1935 leaving his father and his son surviving him. Rush Todd, the testator, died in 1936. The decree of distribution gave the entire estate to Inez Todd, his surviving wife. Ridgeway Todd has appealed from this decree of distribution contending that (1) by virtue of Probate Code, section 90, he is a pretermitted heir and therefore entitled to one-half the estate as his intestate share and (2) Probate Code, section 92, entitles him to succeed to his father’s share of the estate under the will.
Section 90 of the Probate Code provides: ‘‘ When a testator omits to provide in his will for any of his children, or for the issue of any deceased child, whether born before or after the making of the will or before or after the death of the testator, and such child or issue are unprovided for by any settlement, and have not had an equal proportion of the testator’s property bestowed on them by way of advancement, unless it appears from-the will that such omission was intentional, such child or such issue succeeds to the same share in the estate of the testator as if he had died intestate. ’ ’
Section 92 of the Probate Code provides: “If a devisee or legatee dies during the lifetime of the testator, the testamen*277tary disposition to him fails unless an intention appears to substitute another in his place; except that when any estate is devised or bequeathed to any kindred of the testator, and the devisee or legatee dies before the testator, leaving lineal descendants, or is dead at the time the will is executed, but léaves lineal descendants surviving the testator, such descendants take the estate so given by the will in the same manner as the devisee or legatee would have done had he survived the testator. ’ ’
Section 90 cannot be properly interpreted without taking into account the effect of section 92. In the ordinary situation where a testator is predeceased by his child who leaves a surviving child, the grandchild will succeed to his parent’s share under the will by virtue of section 92. If the grandchild has received no express mention in the will may he also be regarded as a pretermitted heir under section 90 with the right to claim his intestate share of the estate in addition to that portion which he takes by virtue of section 92? The majority opinion states that he may not but gives no reason for reaching that conclusion.
A grandchild who will take his predeceased parent’s share under a will by virtue of section 92 cannot be a pretermitted heir under section 90. When a testator provides for his child by will with no alternate disposition in the event that the child predeceases him, he has by law also provided for any issue of the child, since the issue will take in the place of the parent under section 92. The testator has not, therefore, omitted to provide for the issue of any deceased child within the meaning of section 90. He has provided for such issue by operation of law; if the testator’s child predeceases him, the grandchild will succeed to his parent’s share under section 92 and hence cannot be a pretermitted heir under section 90. Thus, suppose a testator provides among other bequests one of $10,000 for his son but makes no mention of a grandson. Suppose further that the son predeceases the testator and that the grandson’s intestate share under section 90 would be $100,000. The grandson by virtue of section 92 will take only the $10,000 in place of his father, and not the $100,000 under section 90.
In the present case the question of whether or not the grandson, Ridgeway Todd, is a pretermitted heir under section 90, turns upon the determination of whether or not he succeeds *278to his parent’s share under section 92. The import of section 92 is that if a testator makes a testamentary disposition in favor of his child which fails by virtue of the child’s predeceasing the testator, no substitute legatee having been named, the issue of such child will take in place of his parent. If, however, the testator has provided that the property should go to an alternate legatee in such a situation, then such alternate will take the property by virtue of the terms of the will and, there being no lapse of the legacy, the issue of the predeceased child will be able to claim nothing under section 92.
In the present case the testator provided that his estate should go to his wife and his son, or to the survivor. Upon the death of the son therefore the right to receive the entire estate passed to the wife under the terms of the will and the grandson, Ridgeway Todd, cannot claim an interest in the estate under section 92.
The problem remains as to whether he is a pretermitted heir under section 90. If the grandchild of a testator is to take as a pretermitted heir under section 90, the grandchild’s parent must have predeceased the testator. It is respondent’s contention, however, that the grandchild can only take as a pretermitted heir if his parent was dead at the time the will was made; that if the parent was alive at the time the will was made, the testator’s duty was to provide only for his then living child, and that if such child subsequently predeceases the testator, a surviving grandchild is not a pretermitted heir within the meaning of section 90. In re Barter, 86 Cal. 441 [25 Pac. 15], construing Civil Code, section 1307, now replaced by section 90, held that a grandchild was not rendered pretermitted by the testator’s failure to provide for him when his parent was alive at the time the will was made even though the parent predeceased the testator. Section 1307 then provided: “When any testator omits to provide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission was intentional, such child, or the issue of such child, has the same share in the estate of the testator as if he had died intestate . . . ” Following the repeal of sections 1306, 1307, 1308 and 1309 of the Civil Code in 1931, however, section 90 of the Probate Code was adopted and the following italicized clause was added: ‘ ‘ When a testator omits to provide in his will for *279any of Ms children, or for the issue of any deceased child, whether born before or after the making of the will or before or after the death of the testator . . . unless it appears from the will that such omission was intentional, such child or issue succeeds to the same share in the estate of the testator as if he had died intestate.” Despite its ambiguity, the most reasonable construction to be placed upon this added clause is that the legislature thereby intended to change the rule of the Barter case under former section 1307 and to provide that a grandchild could be pretermitted even though his parent, who subsequently predeceased the testator, was alive at the time of the making of the will. Unless the added clause is so construed it must either be disregarded entirely with respect to grandchildren or limited to situations where the testator’s son has died before the making of the will but the son’s wife has given birth to a child thereafter. (Estate of Childs, 21 Cal. App. (2d) 103 [68 Pac. (2d) 306].) Since such a grandchild would have been protected under the old section 1307, it is more reasonable to hold that in permitting the issue of a predeceased child, born before or after the making of the will, to be regarded as pretermitted, the legislature intended to include any child born at any time after the making of the will even though his parent was alive when the will was made. This view is reinforced by the reference in the clause to issue born before or after the death of the testator, which, with respect to grandchildren, would seem designed to cover the situation where a testator’s son has predeceased the testator after the making of the will but the son’s wife has given birth to a child after the testator’s death. The only other possible interpretation with respect to grandchildren would limit the application of this part of the clause to the unusual situation in which the testator’s son dies; the testator makes his will, the testator dies, and the son’s wife gives birth to a child, all in the order given, within a period of nine months.
In this light Ridgeway Todd must be considered a pretermitted heir under the provisions of Probate Code, section 90, and he is therefore entitled to one-half of his grandfather’s estate as his intestate share. (Prob. Code, sec. 221.)
A petition for a rehearing was denied March 3, 1941.