The opinion of the court was delivered, by
Thompson, J.It seems very clear that the primary object of *440the testator, in this case, in that portion of his will making provision for his widow after his decease, was to secure for her a comfortable maintenance for life, and that the manner of doing so was to be entirely subordinate thereto. This primary intent is clearly disclosed, and its accomplishment charged upon all his realty, but not a word is said as to the mode and manner of its administration. We have nothing, therefore, to do, in interpreting the provision under consideration, if interpretation he indeed needed in such a case, but to give full efficiency to the clearly-disclosed primary intent, and that is, in the absence of all restriction, to allow the widow the fruits of the testator’s bounty, wherever she may choose to reside. Of course her discretion in this particular must be reasonably exercised both as to place and material, and quantum. A comfortable maintenance, measured by the station, habits, and tastes of the testator and the widow, it is fair to presume was intended; no more nor no less; without extravagance either as to place or material. This, we think, is the only limitation.
In Wusthoff v. Dracourt, 3 Watts 240, and in Craven v. Bleakney, 9 Id. 19, there were similar provisions to that now under consideration, with stronger grounds to iipply restrictions than here, and in both the court held to the primary intent, and that the widows therein provided for were entitled to reside wherever they might reasonably select. In the last case it was said the doubt was whether the widow under the will providing for a maintenance during life “ off the said farm” was obliged to reside on it. Rogers, J., after pointing out the ease with which such a provision might be defeated by an ill-tempered and ill-disposed son or daughter, says, “ extreme caution should be observed to avoid giving bequests such construction as may afford temptation to abuse. It seems to be conceded that the devisee cannot be compelled to maintain the beneficiary on the far-m itself, and why should not the' right of choice be reciprocal?” Certainly this inquiry is equally pertinent to the case in hand. These cases, and Tape v. Tape, 18 Ohio 520, I think fully sanction the view we take of this case. It should be remembered that such a devise being in lieu of dower, the widow is on the score of merit rather to be regarded in the light of a purchaser than a volunteer, and entitled to a liberal construction of provisions made in her favour. That is the teaching of the cases just cited.
It was an error, therefore, on part of the learned judge below to adopt an opposite rule, and from a supposed expectation in the mind of the testator that the widow would reside with one or other of his devisees, infer that a restricted maintenance was intended. There was nothing in the personalty devised that *441requires the construction that it must be enjoyed, if enjoyed at all, on the realty. It was strictly personalty, and might accompany the person of the owner, and be enjoyed elsewhere as well as on the premises. There was therefore nothing on which to base this limitation of maintenance, excepting a supposed expectation that she would live with the devisees.
But even this idea cannot be. entertained when we remember that the realty charg’ed was separately devised, and to he enjoyed in severalty. Which of the devisees shall have the advantage of maintenance on his portion, 'and which pay his proportion ? Both cannot maintain her on his portion at the same time; one must contribute of necessity to-her maintenance elsewhere, and yet the charge and the duty are imposed on both by the same words. This shows that this supposed expectation of the testator did not assume any definite form, if it had been indulged in at all.
We are left entirely free, therefore, from adopting the harsh inference that the testator intended that his widow might be subjected to be cut off from association with her kindred, in order to obtain the means of living in her old age, in case the devisees should alien the property charged as they did, and spend the remainder of her days among strangers in blood or affinity, interested only in the event of her speedy demise. That she might be comfortable under such circumstances I grant is a possibility, but it would be almost miraculous if she were. Comfortable on compulsion is not impossible, but very improbable. If fixed and confined to the soil, like a vassal, the luxuries of earth, she would hardly feel to be adequate to make her comfortable. Fortunately the affection and fidelity of the testator imports nothing like this as a provision for his widow.
From these views it follows, that as the widow was not limited or restricted to any particular place to receive the maintenance provided by the will, it was the duty of those charged with furnishing it to furnish it, or tender performance to her where she might be living, or-where she might choose, and so far as this has not been done the petitioner is entitled to a decree in her favour. The charge was in the nature of a debt, which the debtor, in order to discharge himself of, must seek the creditor, and perform, or offer to perform, his obligation.
Brodhead purchased the lands devised, subject to the provision in question, and it is a charge on the lands in his hands; his representatives, therefore, must make good what has been omitted, by compensation in money. So too are the sons, devisees, answerable for the maintenance of the widow, as they accepted the devises on the terms of furnishing such maintenance, and they do not relieve themselves by a transfer. We must, therefore, reverse the decree of the court below, dismissing the petition, *442and send the case hack again to be proceeded in, in accordance with the views herein expressed, leaving the equities to be administered under them, without further instructions, to the court below.
Now, to wit, May 23d 1864, the decree of the Orphans’ Court of Pike county on the above-entitled petition is reversed, and the proceedings are hereby reinstated, to be proceeded in so as to allow the petitioner the amount or value of a reasonable maintenance for such time or times as the same may have been omitted, if it has been at any time so omitted, and to make such decree or decrees in the premises as to equity and right may belong, in accordance with the reasons here expressed: and it is further ordered that the appellees pay the costs of this appeal.
Woodward, C. J., dissented, and filed a dissenting opinion.