Young's Appeals

Mr. Justice Sterrett delivered the opinion of the court, January 5th, 1885. In consequence of the widow's refusal to accept the provisions of the will, the testator’s scheme of distribution was necessarily disarranged, and, to some extent, the particular disposition he intended to make of his property was defeated ; but this result must be obviated as far as possible by compensating the disappointed objects of his bounty. Under the rigid rules of the common law this cannot be effected, and hence it is necessary to invoke the more plastic principles of equity which, in cases like the present, will treat the substituted devise and bequests to the wife as a trust for the benefit of the disappointed legatees to the extent of their interest therein, and sequester the assets intended for her benefit, in order to secure compensation to those whom her election has disappointed: Story’s Eq. Jur. §§ 1082, 1083; Sandoe’s Appeal, 15 P. F. S. 314; Firth v. Denny, 84 Mass. 468. The testator, after directing payment of debts and funeral expenses, gave to his wife absolutely his household furniture and all personal property in the house at the time of his decease. He also devised and bequeathed to her, for life, the rents, issues and profits of his real estate and income of his personal property not otherwise disposed of, subject to the payment of taxes, and an annuity of $300 to his sister, Mrs. Hastings. He devised the real estate to Mrs. Bigham, subject to the life estate previously given to his wife. He also gave to Mrs. Bigham for the use of her children $3000, which uoes not appear to be subject to the life estate above men [22] tioned. He then directed that, upon the decease of his wife, legacies aggregating $5000 should be paid out of his personal estate to appellant and others, and disposed of “ all the rest, residue and remainder ” by giving- one moiety thereof to his sister, Mrs. Hastings, and the' other to the children of his deceased brother’. The primary object of the testator evidently was to provide for his wife, and at the same time secure payment of the annuity to his sister until the time fixed for payment of the last mentioned legacies and ultimate distribution of his personal estate, viz.: the death of his'wife. He never intended that the annuity to his sister, who, next to his wife, was the chief object of his bounty, should be contingent upon his wife’s acceptance of the will. By electing to take under the intestate law the widow became entitled to one half of the personalty absolutely and one half of the real estate for life, and was of course relieved from payment of the annuity or any part thereof. While half of the personal estate was thus withdrawn from the grasp of the will, the other half, together with a life interest in one half of the realty, was released from any claim the. widow would otherwise have had thereto ; but it does not follow that the annuity is thereby extinguished. As to the widow, the life estate, given to her by the.will, was extinguished by her own act, but, as we have seen, equity comes to the relief of the disappointed beneficiaries; it impresses a trust upon that portion of the estate which has been relinquished by the widow, and subjects the same to sequestration for the purpose of securing compensation to them. In fact, the testator designated the income, given to his wife for life, as the fund out of which the annuity should be paid, and it is certainly neither unjust nor inequitable that so much of that fund (or the property which was designéd to produce it), as has not been diverted by the election of the widow, should be subjected to the charge thus impressed upon it by the testator himself. It works no injury to any of the complaining legatees. By the terms of the will their legacies are not payable until the death of the widow, and what right have they to demand payment in advance of the time, so long as there are disappointed beneficiaries who in equity should be compensated '! The only legatees affected, or likely to be affected, by the widow’s election, are the annuitant and the children of testator’s deceased brother; and the extent to which they may be prejudiced depends on an uncertain contingency. It cannot be questioned that the assets of the estate are more than ample to pay appellant and his co-legatees their respective legacies in full, as soon as their benefactor intended they should be paid. If any regard is to be had for the intention [23] of the testator the annuity must be provided for, and the only equitable mode of doing so is that adopted by the Orphans’ Court. The income arising from the life estate given to the widow was the fund on which the annuity was charged, and out of which it was directed to. be paid. Part of that fund has been diverted from the course of distribution indicated by the testator, but the residue, represented by the life estate in a moiety of the real and personal estate intended.for the widow, being amply sufficient for the purpose, has been justly and equitably charged with the payment which the widow would have assumed had she taken under*the will. For the •reasons above suggested, and others given by the learned judge of the Orphans’ Court, the principle recognized in San-doe’s Appeal, supra, was rightly applied in this case, and appellant has no just ground of complaint. Decree affirmed and appeal dismissed at the costs of appellant.