OPINION,
Mr. Justice Mitchell:
It was held in Coover’s App., 74 Pa. 148, that devises or be-q uests, subordinate to a life-estate in the widow and contingent upon her death, or payment of which is postponed until then, become presently payable upon her election to take under the intestate laws. As to its effect upon all claims under the will, her election is equivalent to her death. This is the general rule, and if there are any exceptions, they must depend on the expression or unavoidable implication of a contrary intent of the testator. No such intent is apparent in the present will. The widow was the chief object of the testator’s bounty. With the exception of a small piece of land which he appears to have overlooked, he left her his whole estate, real and personal, either in specie, or in income, for her life. He gave nothing to anybody until her death. When, therefore, she renounced the provisions of the will, and claimed her legal rights under the intestate law, there was no longer any reason why the definite legacies to appellant and others should be postponed, and they became immediately due.
The learned court below was, however, of opinion that, as the residuary legatees would be disappointed in the amount coming to them, which would be diminished by the half of the personalty taken absolutely by the widow, they should be compensated out of the benefits intended to be conferred on the widow by the will which she has renounced. The principle is well settled that equity will depart from the literal provisions of a will in order to carry out a superior or preferred intent of the testator which would otherwise fail. But the object is not to *220produce a distribution which the court may think more equal or more equitable, but to approximate as closely as possible to the scheme of the testator which has failed by reason of intervening rights or circumstances. Hence the regular order of the will is never departed from except of necessity, and then only to the extent that necessity requires. There is no such necessity in the present case. The exact scheme of the testator has been somewhat disarranged, but, taking out the widow’s share, and treating her election as equivalent to her death, there is nothing at all in the way of carrying out the remaining directions of the will literally. True, the residuary legacies will be lessened in amount, but that is the unavoidable incident of such legacies. They take only what is left, be it much or little. Had the estate here, by any accident, been reduced to four thousand dollars, the widow would have taken one half, the definite legatees the other half, and the residuaries nothing. On the other hand, had it increased to forty thousand dollars, the definite legatees would still have got no more than their five hundred dollars each, and the residuaries would have reaped the full benefit of the rise. Such subjection to contingencies is the fortune of residuary gifts. The testator is presumed to have known this ; and yet, knowing it, he provided that each of the definite legatees should receive five hundred dollars before the residuaries should receive anything. To postpone the former to the latter would be a plain violation of the testator’s express command. In this case, the definite legatees, to be sure, get the benefit of the acceleration of payment, but so also do the residuaries. The latter, moreover, get the advantage of one half the personalty given by the will absolutely to the widow, and it might so happen that this, and the acceleration of payment, would be practically more valuable to the residuary legatees than the provisions of the will. The use and income from now until the death of the widow may far more than make up for the diminution of the principal. That is a matter which will vary with the facts of each case. But the law must have a settled and uniform rule, and it is that the widow’s election to take against the will is equivalent to her death.
It is urged “by the appellee that the testator made a distinction between the fund raised by the sale of the property not bequeathed to his wife, and the sale to be made after her death; *221and tbat it is out of the proceeds of tins latter sale that the definite legacies are directed to be paid. But the distinction between the two funds has been obliterated by action of the widow equivalent to her death. Again, it is said that the pan ticular pecuniary legacies are not made payable out of the per sonal estate. But neither are the residuary legacies. Both are payable out of the same fund, and there is no sufficient reason for departing from the ordinary rule that specific legacies are to be first paid, and then the residuaries.
The learned judge was largely influenced by Young’s App., 108 Pa. 17" court="Pa." date_filed="1885-01-05" href="https://app.midpage.ai/document/youngs-appeals-6237912?utm_source=webapp" opinion_id="6237912">108 Pa. 17, and the reasoning of the court below in that case would appear to sustain his conclusion. But, though the decree in Young’s Appeal was affirmed, the opinion of this court contains no intimation of an intent to depart from the principle settled in Coover’s Appeal. The main question was whether the annuity survived. It was charged expressly on the life-estate of the Avife; and when the wife destroyed that estate by action equivalent to her death, it was claimed that the annuity fell also. To save the annuity as a preferred intent of the testator, was the object of invoking the principle now under discussion, and to that only was the opinion of this court directed. If there was any departure from the recognized principle in the other points involved, it was because they were so subordinate that it was overlooked in the general affirmance of the decree, which was clearly right on the main and only important question. The case was intended to be in entire harmony with the rule laid down in Coover’s Appeal, and with the applications that had been made of it in other cases. In one of these, Gallagher’s App., 87 Pa. 200" court="Pa." date_filed="1878-06-03" href="https://app.midpage.ai/document/gallaghers-appeal-6235826?utm_source=webapp" opinion_id="6235826">87 Pa. 200, the law is well expressed by the learned judge of the court below, approved by this court, as follows: “Where a widow elects not to take under a will, her substituted devises and bequests are a trust in her for the benefit of the disappointed claimants, to the amount of their interest therein. A court of equity will sequester the benefit intended for the wife, to secure compensation to those whom her election disappoints. Then add the general rule that specific legatees and devisees shall be first satisfied, and any deficiency or loss must fall upon the residuary legatees, and we think this question is decided.”
From these views it follows that in its main features the dis*222tribution reported by the auditor was correct, but it must be modified in regard to tbe five per cent payable to tbe appellant. By tbe terms of tbe codicil tbis was to’ be “ five per cent of tbe value of all tbe personal and real estate remaining at tbe death of Eveline Ferguson.” Tbis is five per cent of tbe whole net fund for distribution, and must be so calculated, though it will of course come out of the remaining half, after the widow has taken her half. There is, however, no reason why it should have any priority in payment over tbe definite pecuniary legacies. It is no more definite, and is given no precedence over them by the will. It should therefore come in pari passu. It would have simplified matters in this respect, and avoided any question of pro-rating, if the second fund arising from the sale of the real estate, etc., had been referred also to the auditor, but as it was not, the distribution must be made without reference to it. The widow will take one half as if the decedent had died intestate, and the other half will then pass under the will as if the widow were dead. The definite pecuniary legatees, including the appellant’s five per cent, will take the balance of the present fund pro rata, and the residuaries will have to wait until there is a residue to come to them.
Judgment reversed, and record remitted for distribution to be made on the principles herein indicated.