The election by the husband to take against the will has drastically disarranged testatrix’s scheme of distribution. Equity requires us to reduce this disturbance to a minimum and to follow the plan of the will as closely as possible.
Under the will decedent’s husband and brother are each entitled to one half of the income of the residuary estate for life, but the method of distributing the principal depends upon whether the husband or brother dies first. Since the brother actually predeceased the husband, the provisions which were to have become effective in the event the husband died first are inoperative and must be disregarded.
In the event of the prior death of the brother, the will provides for the distribution of principal upon two different dates. One fourth of the corpus of the residuary estate is to be paid at the death of the brother. From this share are to be paid the five pecuniary legacies of $5,000 each and the balance, if any, to the two charities entitled to the remainder. The income on the remaining three-fourths share of the estate is to be paid to the husband for life and the principal to be distributed at his
Four sets of exceptions were filed by the pecuniary legatees, who have advanced several entirely different theories as to the manner in which the estate should be distributed. One of the exceptants takes the position that the election of the husband to take against the will is equivalent to his death and accelerates the remainders so that the entire estate must be distributed now. Another suggests that one half of the estate is presently distributable.
We are of the opinion that the auditing judge was correct in concluding that the election of the husband to take against the will cannot be regarded as equivalent to his death under the circumstances here existing. If this were done and either all or one half of the estate distributed at this time, it would work hardship on the two residuary legatees. They are entitled to the income which would normally go to the husband as long as he is alive. If the entire estate were presently distributed as is suggested, the pecuniary legatees who were to receive their legacies at the death of the husband would actually get more than the testator intended, for they would receive at once the full amount of their legacies, which they could invest and get, in addition, the income therefrom for the time between the actual receipt of the money and the date when, in accordance with the will, they would have received it.
The distribution directed in the adjudication of one fourth of the corpus of the residuary estate is in literal compliance with the provisions of the will. The further order to sequester the income on the remaining three-fourths share until the natural death of the husband is necessary to protect the interest of the residuary legatees. We think this plan of distribution is as close an approximation of the plan of the will as is possible to
We agree with the auditing judge that the present case is controlled by Lonergan’s Estate, 303 Pa. 142 (1931). We think that what was said in that decision applies with equal force to the instant situation.
We are not unmindful of the fact that in Lonergan’s Estate sufficient money was on hand to pay all the pecuniary legacies in full, whereas in the present case the one-fourth share now being distributed will be insufficient to pay the five pecuniary legatees the full amount of their legacies. We are, therefore, purposely refraining from deciding whether the unpaid balances of these pecuniary legacies will be recoverable, either with or without interest, at the death of the husband, when final distribution will be made.
The exceptions are, therefore, all dismissed and the adjudication confirmed absolutely.