concurring. — In cases of this kind, where a spouse’s election to take against the will upsets testator’s plan by reducing the amount of his estate available to the beneficiaries named in his will, I think the time has come for a more practical and realistic solution of the problem than any which so far appears in the books.
The canon of construction which in ordinary cases preserves legacies at the expense of the residuary seems to me ought not be applied in this class of eases, because it all too frequently results in the reduction, if not the extinction, of the gifts to those who testator assumed would get the bulk of the estate.
Why should not other legacies (save specific), whether pecuniary or residuary, be equally reduced by the same proportion as that by which the spouse’s election has reduced the entire estate?
I admit the lack of clear authority for this plan, though Lonergan’s Estate, 303 Pa. 142, emphasizes the importance of seeking to do equity to all parties.
*589Since the auditing judge has correctly followed the authorities, I concur in the result, but write this opinion in the hope that our appellate courts may see fit to reexamine the question and advance to the logical conclusion the statements in their most recent cases, that equity to all parties should be the controlling rule. Or perhaps the profession might feel called upon to study the question with a view to corrective legislation.