Acting Chief Justice, concurring specially.
I agree with the conclusion reached by the majority opinion. I write separately to point out that although this case may not be appropriate for a summary judgment, Section 30.1-06-01(1) [2-301], N.D.C.C., does provide that an omitted spouse is not entitled to receive an intestate share if the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator “or from the amount of the transfer or other evidence.” The majority opinion notes that Section 1-02-05, N.D.C.C., provides that when the wording of a statute is clear and free of all ambiguity the letter of it is not to be disregarded under the pretext of pursuing its spirit. Here, the statute unambiguously states that the intent of the testator may be shown from the amount of the transfer or other evidence. The application of the statute may be difficult but that does not make it ambiguous. The amount of the transfer is therefore significant and, in some instances, it may and should be paramount.
The fact that Section 30.1-05-01[2-201] does not have application to pretermitted children, although Section 30.1-06-02[2-302] contains language similar to Section 30.1-06-01, is not significant.
Although I do not read the majority opinion as necessarily suggesting that the amount of transfers to an omitted spouse should be ignored, I believe those amounts are significant to determinations made by the court under these statutes and may in some instances be determinative of the issue.