(concurring) — One of these cases involves a second marriage both of the decedent and the surviving spouse. Each had children by a first marriage. Each had separate property.
Decedent by his will provided for the surviving spouse of his second marriage and left the remainder of his property to his children. By permitting the surviving spouse to select a homestead from decedent's separate property previously disposed of by his will, this decision has the practical long term effect of taking decedent's property from his children and giving it to the surviving spouse's children. To my mind, this is not a happy result and is one that probably would not occur in this instance if the probate court could exercise discretion as when making an award in lieu of homestead.
Nonetheless, the legislature controls in the disposition of decedents' estates. As the majority opinion points out, the legislature has met on several occasions since this court decided In re Estate of Lyons, 83 Wn.2d 105, 515 P.2d 1293 (1973), and apparently acquiesces in the construction of statutes that case makes. Because the legislature has not *66acted to permit the probate court to do other than follow Lyons, I reluctantly concur with the majority.
Williams, J., concurs with Hicks, J.
Reconsideration denied March 31, 1981.