The opinion of the court was delivered, January 4th 1869, by
Read, J.The widow of a deceased testator, in case she elects not to take a devise or bequest under her husband’s will, takes her dower at common law, and her share of the personal estate of her husband under the intestate laws of the Commonwealth. Her dower and her share of the personal estate thus taken are paramount and prior to the will, which in such case only operates upon the real estate subject to her dower and upon the personal estate left after her share is taken out. In case therefore of a deficiency of the remaining personal estate to pay all the legacies, there must be an abatement of all the general legacies proportionally, unless some priority is established, the onus being upon any one claiming it. The claim of dower settles itself, and the case most nearly resembling that relating to the personal estate is the provision made by the 15th section of the Act of the 18th April 1833, in the case of a widow married or a child born after a will made and not provided for in such will, in regard to whom such testator shall be deemed and construed to die intestate, and such *396widow shall be entitled to such purparts, shares and dividends of the estate, real and personal, of the deceased as if he had actually died without any will.
In Mitchell v. Blain, 5 Paige Ch. Rep. 588, it was held, under a similar enactment, with however a provision that the child “ shall be entitled to recover from the devisees and legatees in proportion to and out of the parts devised and bequeathed to them by such will,” that all the devisees and legatees must contribute rateably in proportion to the value of the real or pe'rsonal estate devised or bequeathed to them respectively, to make up the distributive share of the post-testamentary child. And in making such contribution no distinction is to be made between specific, general and residuary legacies, but each legacy is to abate rateably in proportion to its amount or value.
“It was not intended,” says the chancellor, “to disturb the arrangements which the testator had made in the disposition of his property among the several objects of his bounty, except so far as to compel each to contribute rateably out of that which he would be entitled to according to the will, for the purpose of making up the distributive share of the post-testamentary child. The legacies must therefore abate in proportion to their amount and value, so that the residuary legatee shall only pay his rateable proportion with the general and specific legacies.”
In this case the only estate of the testator before the court was his personal estate, and the directions of the statute are clear and positive. In Pennsylvania there is no such provision in relation to the payment to the widow electing to take her share under the intestate law, instead of the bequests or devises under the will of her husband. The legacies to the three daughters must therefore be paid out of the personal estate, and there being a deficiency of it caused by the election of the widow, the question raised by these appeals is whether these legacies have a priority of other dispositions of that fund, and must be first paid in- full, without any abatement, which is the position assumed by them, and upon which ground they ask a reversal of the decree of the Orphans’ Court so far as regards their legacies.
Michael Bard, the testator, died May 11th 1865, having made a will which has been duly proved, dated the 23d April, in the same year, and leaving a widow, Martha Bard, and five children by a former wife, to"wit: three daughters; Annie intermarried with Roland II. Brubaker.; Ecedora intermarried with John Townley, and Susanna intermarried with William Drybread; and two sons, Jefferson S. Bard and William M. Bard; William was in his thirteenth year at the time of the death of his father, and Jefferson came of age in July 1866, and was married in December of the same year. ,
The auditors appointed by the Orphans’ Court to distribute the *397balance, in their report say “ the widow of the testator refuses to take under the provisions of the will, and claims her rights at law. The estate is not sufficient to pay the widow and all the legacies,” and their conclusion is “ that all the devises and bequests must abate pro rata,” and they accordingly report that the three appellants, in common with the other devisees and legatees, are only entitled to 74.251 per centum of the respective legacies, which is affirmed by the court, from which decree these appellants have appealed and assigned two errors, both of which may be condensed into one. That the court should have decreed their legagacies to be paid in full, with interest.
By the 7th and 8th items of his will, the testator gives to his executors in trust for the use of his daughter Annie and her issue, “ $4000, the interest of which, at 5 per cent., shall be annually added to the principal, so long as her present husband shall live, unless her death should sooner occur; but in ease she becomes a widow, then my executors shall annually, on the 1st day of April, pay the interest of the preceding year to her, and at her death, if she leaves issue, or the descendants of such, the principal sum, with the accumulated interest, shall be paid to such issue or descendants.” And he gives to his executors in trust for the use of his two daughters, Ecedora and Susanna, each the sum of $5000, the interest of which, at 5 per cent., shall be annually, on the 1st day of April, paid to them, and at the death of eithei’, the principal, with its accumulated interest, shall be paid to the issue of such decedents or the descendants of such issue.
Then follows a provision for the payment of taxes or expenses upon said trust-moneys, and it is further provided if either of his daughters should die without leaving issue, or the descendants of such, the amount so held in trust for her shall be distributed in equal shares among his other children, or the descendants of such as may be dead.
The personal estate is sufficient to pay these three legacies in full, unless the 3d item in the will is brought in upon an equal footing with them.
The 3d item directs “ that if my son Jefferson gets married, or wishes to farm for himself before William is of age, my executors shall buy a farm for him some place in the neighborhood, which in the whole shall be about equal in value to my mansion, and get the title for the same made from the vendor to my said son Jefferson, his heirs and assigns, and pay the same out of my estate, and in that ease, if there should not be sufficient funds on hand besides what in hereinafter bequeathed for the use of my daughters, my executors shall sell my brick house and lot in New Holland, which I bought from the assignee of S. It. Groff and wife, and execute a legal deed of conveyance for the same to the purchaser, his heirs and assigns, which shall be valid in all respects.”
*398“ A pecuniary legacy,” says C. J. Gibson, “ may undoubtedly be exempt from abatement, as in the case of a wife or child destitute of other provision, or of a legacy given in lieu of a dower or of a preference manifestly intendedDuncan v. Alt, 3 Penna. Rep. 382.
The language of the will leaves no doubt that a preference was manifestly intended in favor of the three daughters and their issue, whose legacies were to be first paid before any of the funds on hand should be appropriated by the executors to buy a farm for Jefferson.
With this plain- construction of the will it is clear that the Orphans’ Court were in error in not awarding to the executors in trust for the three daughters of decedent the full sums bequeathed to them in the will with interest.
It is therefore ordered and decreed that so much of the decree of the Orphans’ Court as regards the legacies of the appellants be reversed, and it is hereby ordered and decreed that Christian S. Hoffman and E. G. Groff, executors of the will of Michael Bard, deceased, and trustees under his will of his several daughters and their issues, do hold in trust for his daughter Annie, and her issue, the sum of $4000, together with interest thereon, at 5 per cent, per annum, from the 1st day of April, A. D. 1866, to answer the provisions of the 7th clause of the will of the said Michael Bard, deceased, and that they hold the further sum of $5000 to .answer the legacy bequeathed to them in trust for Mrs. Ecedora Townsley and her issue, and the further sum of $5000 to answer the legacy bequeathed to them in trust for Mrs. Susanna Drybread and her issue, and that they pay to said Ecedora Townsley and Susanna Drybread out of the estate of the testator the interest accrued upon their respective trust-funds at the rate of 5 per cent, per annum, from the 1st day of April, A. D. 1866, in accordance with the terms of the said will, and that the costs of this appeal be paid out of the estate of Michael Bard, deceased.
The record is remitted to the Orphans’ Court to carry this decree info full effect.