Opinion by
Mb. Justice Bbown,The testatrix was survived by her husband, but no issue. He elected to take against her will, and claimed the sum of $5,000 out of her estate under the provisions of the Act of April 1, 1909, P. L. 87. The appraisers selected to appraise and set apart property of his wife’s estate, in this amount included in their appraisement *409certain real estate which they valued at $1,550. This property was devised to him for life, with remainder to Mary Mondeau, and she has appealed from the decree confirming the report of the appraisers.
It is conceded that the appellee may elect to take against his wife’s will, and is entitled, under the Act of 1909, to get the sum of $5,000 from her real or personal estate, or both; but the contention of the appellant is that, in view of the fact that pecuniary legacies and the residuary estate of the decedent exceed the sum of $5,000, the appellee has no right to take, as a portion of the sum to which he is entitled under the Act of 1909, the land specifically devised to her. Whether the legatees must, in some measure, relieve appellant’s disappointment is not now a question before us. How the estate is to be divided, in view of the appellee’s election to take against his wife’s will, must be determined on distribution.
In her contention that the appellee ought not to be permitted to take the land devised to her the appellant overlooks the fact that, when a surviving wife or husband elects to take against the other’s will,- there are, as to her or him, no legatees or devisees to be considered. The estate is to be distributed as that of an intestate, under the intestate laws of the State, of which the Act of 1909 is a constituent part. The appellee, therefore, under his election to take against his wife’s will, takes as if she had made no will: Guenthoer’s Estate, 235 Pa. 67. Her estate having exceeded the sum of $5,000, her husband was entitled, upon his election not to abide the terms of her will, to take, first of all the sum of $5,000 absolutely, to be chosen by him from her real or personal estate, or both. He chose to take a portion of that sum in real estate, and there was set apart to him land which was appraised at $1,550. When he elected to take a portion of the $5,000 in land, his right was to select any piece of his wife’s real estate that he chose, for the.procedure for appraising and setting apart to him $5,000 *410in value of the property of his wife is the same as is provided by the Act of April 14,1851, P. L. 612, relating to widows’ exemptions.
Decree affirmed and appeal dismissed at appellant’s costs.