I concur, on the authority of Mawson v. Mawson, 50 Cal. 539, and under some feeling of compulsion, in view of the consequences of a different ruling. In Mawson v. Matoson, it was intimated that the method originally provided for setting apart a homestead in article 2 of chapter 5 of the Code of Civil Procedure had been repealed, and there was, therefore, no mode prescribed, and the court would proceed under section 187 of the Code of Civil Procedure. Section 1465 still prescribes, however, that when no homestead has been selected in the lifetime of the deceased husband or wife, the court may proceed to set apart one as provided in article 2. That article formerly contained other sections specifically directing the mode of setting apart a homestead in such cases. They have been separated, but there still remains a procedure in article 2 for setting apart a homestead where one had been selected, but is found to exceed five thousand dollars in value. This procedure mutatis mutandis could be made applicable.
In view of the very grave questions which have been raised in regard to the validity of these homesteads which have been set apart without notice, I suggest that probate judges adopt, as a suitable mode of proceeding, the mode still found in article 2, so far as applicable; *598that is, the admeasurement and appraisal of the homestead, the report, the setting of a day for hearing, and the notice as there prescribed.
Searls, C. J.,concurred in the suggestions of Justice Temple as to a proper course to be pursued in the cases indicated.