The opinion of the Court was delivered by
Rogers, J.
As the maintenance of the widow and daughter is “charged upon” and “payable out of” the estate devised, the remedy is in the orphans’ court, and not by ejectment, as is ruled in Donner v. Donner, decided at this term and not yet reported. Bear v. Whisler, 7 Watts 144, arises on a deed and not on a will, and in that respect is distinguishable from this. This is a case peculiarly fitted for equitable cognizance. The testator directs “ that his widow shall have a good and comfortable living, as long as she remains his widow, of (from) the farm.” He devises the farm to his son William, upon “condition that he shall maintain his wife and daughter, and pay the other legatees the sum which he directs they should have.” It would be almost impracticable for a court of common law to do complete justice,' in such cases, between parties; but this desirable end may be attained through the medium of the orphans’ court, which has the same power in the premises as a court of chancery. The doubt here, is, whether the widow is obliged to reside on the land, if she wishes the benefit of the bequest.. It would be better for all parties that she should *21reside on the farm, provided her doing so was consistent with the intention of the testator, which was to secure to her a permanent home, and a comfortable subsistence. But it is not to be supposed that he designed that she should continue to reside on the property at the sacrifice of every comfort of life. It is true, that no decided acts of cruelty have been proved, nor is this necessary; for the situation of a person may be rendered, by petty annoyances, as uncomfortable, as by acts of open outrage, and these of such a nature, as it is difficult for a third person to appreciate, and which may not be susceptible of legal proof. Why then compel a widow, or unmarried sister, to live at the mercy of the caprice, or' ill temper of a brother, or his assignee. If this principle should be established, there would be little difficulty to rid themselves of the burthen of providing for them altogether. These family arrangements are frequentiy made by parents anxious in their last moments to provide, as far as human prudence can, a comfortable support, for their widows, and unmarried daughters; and extreme caution should be observed to avoid giving bequests such a construction, as may afford a temptation to abuse. It seems to be conceded that the devisee cannot be compelled to maintain the beneficiary on the farm itself, and why should not the right of choice be reciprocal? It is a matter which admits of compensation in money, and the amount of the allowances must depend on all the circumstances of the case. Each case must furnish its own rule, and hence the peculiar propriety of referring this class of cases to the orphans’ court. And this accords with Warthoff v. Draconet, 3 Watts 245, where these principles were incidentally noticed. Here the intention of the testator was to pledge the farm devised to his son, to secure, as he expresses it, “a good and comfortable living and maintenance, for his widow and daughter.”
J udgment reversed.