Evans's Estate

Opinion by

Mb. Chief Justice Paxson,

It is the settled rule in Pennsylvania that where a wife elects to take against her husband’s will, equity executes the substituted devises and bequests to the wife as a trust in her for the benefit of the disappointed claimants to the amount of their interest therein, and the court will assume jurisdiction to sequester the benefit intended for the refusing wife in order to secure compensation to those whom her election disappoints: Sandoe’s Ap., 65 Pa. 314; Gallagher’s Ap., 76 Pa. 296; Young’s Ap., 108 Id. 17; Ferguson’s Est., 138 Id. 208; Batione’s Est., 136 Pa. 307.

This was precisely what was done, as we understand it, by the learned auditor and court below. The testator died August 28, 1889, leaving a widow but no lineal descendants. By his will he gave to his widow his household furniture, horses, carriages, etc., $2,500, absolutely, his dwelling-house and the income of $50,000 for life. Pie gave a large number of pecuniary legacies which he directed to be paid within one year after his decease. He then devised three farms to his brother, John James Evans, for life, with remainder to the four daughters of said brother. He also devised -three farms to his brother, William Watson Evans, for life, with remainder to his three daughters. He also devised a farm, to his nephew, Robert A. Evans, and another to a grand-nephew. These devises are also for life, with remainders over. He then gave all the rest, residue and remainder of his estate, of every kind, to his brother, John J. Evans, and his sister, Clementina E. Locher, their heirs and assigns, as tenants in common in equal shares.

The widow elected to take against the will, and proceedings were instituted by her in the orphans’ court of Lancaster county, to ascertain and fix her dower in the real estate devised by the testator; and the said orphans’ court fixed her dower in the lands specifically devised as aforesaid, as follows:

In the three farms devised to John J. Evans, . $5,300

In the three farms devised to W. W. Evans,. . 5,400

In the farm devised to his nephew, R. A. Evans, 2,500 In the farm devised to his grand-nephew, . . 4,500

Making a total of dower assigned $17,700.

The amount for distribution in the present account was $109,538.90. Of this sum the auditor awarded to the widow $54,769.45, leaving for distribution among the legatees, $54,769.45. Of this latter sum the auditor set apart the sum of $21,240, which he directed to be invested, and the income thereof paid to the respective devisees, whose lands had been charged with dower, until further ordered by the orphans’ court.

It was contended by the appellant that the proceedings in the orphans’ court were invalid, and that in any event the action of the auditor, and the court below, in relief of the devisees on whose land the dower was charged, was premature ; it being alleged that this was but a partial account, and that these equities should have been arranged upon the final settlement of the estate.

In regard to the first objection, it is sufficient to say that the proceedings in the orphans’ court, by which the dower was assigned, are not before us. We cannot, in a collateral proceeding, review a decision of that court from which no appeal has ever been taken.

Nor do we think the order complained of was prematurely made. The election of thé widow to take against the will creates an actual, present disappointment on the part of the devisees. The lands which they take under the will are actually charged with the dower. At present there is no disappointment on the part of the legatees. There may or there may not be such disappointment upon the final settlement of the estate. Should there be, the orphans’ court, in the exercise of its equity powers, can readjust the distribution of the estate so as to do exact equity to all parties concerned. It will be observed that the order complained of is made only until the further order of the court. It is obvious that had not this sum of $21,240 been set apart now, a state of facts might exist at the final settlement of the estate which would render the court powerless to protect the devisees. For if this sum were now distributed to the legatees, and no further assets come into the hands of the executors, no order could be made in relief of the devisees. If, upon final settlement, the legatees should be disappointed, it will be the duty of the court below to adjust the equities between them and the devisees in such manner that each shall bear his proper proportion of the loss, and no more. We will not now anticipate what may never come to pass.

The decree is affirmed, and the appeal dismissed at the costs of the appellant.