The opinion of the court was delivered, October 20th 1870, by
Read, J.The will .of Michael Bard was before this court, in 8 P. F. Smith 393, when the three legacies to three married daughters of the testator were directed to be first paid, in preference to any appropriation of the personal estate, to buy a farm for *316Jefferson. So far as this went, the report of the auditors was set aside. The present appeal of the guardian of the minor William, necessarily brings up the consideration of the remainder of the report of the auditors, with which we shall now proceed to deal.
The widow, by her election not to take under the will of her husband, took one-third of the personal estate of the decedent and her dower at common law in the real estate, and the three legacies to the three married daughters were under our decision paid in full out of the personal estate. This leaves subject to the will the remaining personal estate and the real estate subject to the widow’s dower. The accounts not being before us, we are unable to say what is the result produced by this state of things. One thing is however clear, that the auditors adopted an entirely erroneous mode of settlement, in making all the devises and bequests abate pro rata, and of course their whole plan of distribution falls to the ground.
The rule in equity treats 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.
This reaches all bequests and provisions for the widow in the second, fourth and sixth items of the will. The executors, if Jefferson wishes it, are directed in the third item to purchase for him a farm, but it is evident that the remaining personalty will not be sufficient for this purpose, and that the executors will be obliged to sell the brick house and lot in New Holland mentioned in the third item.
This construction will leave William whatever he is entitled to under the terms of the will, and appropriates to the use of Jefferson the remainder of the personalty, the proceeds of the brick house and lot, and the sequestered benefits intended for the widow.
The legacy to Jefferson is in these words :■ “ Third, I direct that if my sop 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 place, and get the title for same made from the vendor to my said son Jefferson, his heirs and assigns, and pay the same out of my estate.”
This language leaves no doubt that the testator looked upon Jefferson with the same favor that he did William, and intended to give them equal shares of his property. The further provision in the fourth item, giving the said mansion farm to his son Jefferson in case of the death of William “before he is twenty-one *317years old and without leaving issue” confirms this view to its fullest extent.
This legacy is to be paid out of the'estate, and whatever deficiency there may be after the application of all the funds enumerated in the foregoing part of the opinion, must be charged upon and paid out of the mansion farm devised to William, taking care however to preserve the equality of value between the two brothers. In this shape and in this view the^Qrphans’ Court is the proper tribunal, and possessing equity powers can dispose of all the questions raised in this case.
The effect of this is to reverse so much of the decree of the Orphans’ Court as was left unreversed by the decree of this court, and to enter a decree in conformity with this opinion:
And now, October 20th 1870, it is ordered, adjudged and decreed, that so much of the decree of the Orphans’ Court as remained unreversed by the former decrees of this court be reversed and it is hereby ordered that all the benefits intended for the refusing wife be sequestered for the compensation of Jefferson. That the brick house and lot in New Holland be sold, and after applying the same with the personalty to the purchase of a farm for Jefferson agreeably to the directions of the will, and whatever may be the deficiency for this purpose is to be raised out of William’s mansion farm, taking care however to preserve the equality of value between the two brothers. And it is further ordered that the Orphans’ Court carry this decree into full effect, and that the record be remitted for that purpose. The costs of this appeal to be paid out of the estate.