dissenting in part.
The majority opinion clouds several probate statutes in order to reach what is deemed to be an “equitable result.” R. C. 2113.38, which in this instance should be read to permit the surviving spouse to purchase her home, less the adjacent 51.82 acres, is misread. R. C. 2113.38 provides, in its seventh full paragraph, that “the finding of the court [permitting the election to purchase] shall be in favor of the surviving spouse, unless it appears that the appraisement was made as a result of collusion or fraud, or that it is so manifestly inadequate that a sale at that price would unconscionably prejudice the rights of parties in interest or creditors.” (Bracketed material added.)
The majority reads this provision to bar a spouse’s purchase when a “sale” is found to be manifestly inadequate. A close examination of the statute clearly indicates that the word “it,” emphasized in the above quote, refers to the ap-praisement not the sale. The appraisement is that which must be found manifestly inadequate. In this cause the sale may indeed have been unconscionably prejudicial to the parties, but not because the appraisement was manifestly inadequate3 or because of collusion or fraud. The right to election is granted by the General Assembly and should not be abrogated except in those circumstances explicitly set forth by that body; to do otherwise only disrupts the certainty of this procedure.
Other statutory provisions are also undermined. R. C. 2115.02 requires the appraisal value to be based upon the value at the time of decedent’s death, yet because of today’s holding, appreciation over several years will inure to the benefit of the daughters. Similarly affected is R. C. 2115.17, which states that the appraisement is conclusive once it is approved. A purchase at the appraised value should be allowed except where collusion, fraud, or some other circumstances of a similar nature make the appraisement manifestly inadequate.
Equally disturbing in this cause, is the extension of the Probate Court’s equity powers. The Probate Court has plenary power under R. C. 2101.24, but only as to matters *34properly before it. Its equitable jurisdiction should only be invoked in matters that are incidental to the express powers conferred upon such courts. Bolles v. Toledo Trust (1940), 136 Ohio St. 517, 521. An expansion of power that permits the Probate Court to completely bar surviving spouses from purchasing their homes, whenever it deems such a sale inequitable, is unwarranted and unsupported by precedent.
These problems could be easily avoided, if the surviving spouse were permitted to purchase the property at the appraised value. The statutory scheme would be left intact and the appellees would have an adequate remedy at law in a contract action to recover the money due to them. A full hearing before a common pleas court would be more appropriate on this aspect of the cause.
Herbert, J., concurs in the foregoing dissenting opinion.
The appellees have not challenged the appraisal. In this instance objections to the inventory and appraisal were withdrawn.