We are clearly of opinion that there was no breach of the condition of this policy prohibiting the vacation of the premises. We sustain the first, second, fifth, and sixth assignments of error. As we hold that there was no breach of condition arising upon the facts of the case, it is not necessary to consider the question whether there was a waiver of the condition in question. The rejected offers of testimony should all have been received except the one covered by the fourth assignment, which was a mere general offer, without any specific facts stated.

Judgment reversed, and venire de novo awarded.

INSURANCE-OCCUPANCY OF PREMISES. —A tenant moved out on Tuesday. On Wednesday the owner took possession, and commenced cleaning the house, intending to occupy it, with his family, on Saturday. On Friday night, the house burned down. It was held that the house was not vacant: Eddy v. Hawkeye Ins. Co., 70 Iowa, 472; 59 Am. Rep. 444. An almost identical case was Shackelton v. Sun F. Office, 55 Mich. 288; 54 Am. Rep. 379. For a full discussion of the terms “vacant” and “unoccupied,” and similar expressions, in policies of insurance, see extended note to Moore v. Phoenix Ins. Co., 10 Am. St. Rep. 390; Richards v. Continental Ins. Co., 83 Mich. 508.

ESTATE OF VANCE.

[141 PENNSYLVANIA STATE, 201.]

Where the ten

WILLS-ETECT OF WIDOW'S ELECTION ON LEGACIES. tator's will bequeaths the income of his estate to his widow for life, with particular and residuary legacies payable at her death, her election to take under the intestate laws, and against the will, is equivalent to her death, and its effect is to make all the legacies payable at once, in the order of their priority. In such case, particular legacies will not be postponed until the widow's death, in order that the income thereof may be paid the residuary legatees during her life, to swell the amount to which they are entitled, and compensate for diminution in their legacies. WILLS-RIGHTS OF DEFINITE AND RESIDUARY LEGATEES. - Equity will interpose, if necessary, to preserve the intention of a testator from destruction; but it will never interfere in favor of a residuary legatee, as against a definite legatee, unless upon a plain implication in the will that the residuary legatee was in fact a preferred object of the testator's bounty.

JAMES M. VANCE, at the time of his death, left an estate exceeding four hundred thousand dollars in value. By his will he bequeathed the income of his real estate to his wife for life, charged his personal estate with annuities amounting to sixteen hundred dollars, and bequeathed the remainder of

the income of his personal estate to his wife for dife. At her death, he bequeathed a legacy of one thousand dollars to each of his six nephews, and other legacies, amounting to seventeen thousand dollars, to different charities. His will then directed that after his wife's death the residue and remainder of his estate should be divided among certain collateral kindred. His widow elected to take under the intestate laws, and against the will, and by agreement the annuities were capitalized, and paid out of the personal estate. This contest is to determine the manner in which the definite and residuary legacies should be paid...

A. Sydney Biddle, E. F. Hoffman, G. W. Biddle, and H. G. Ward, for the appellants.

John G. Johnson, for the appellees."

MITCHELL, J. These appeals are ruled by Ferguson's Estate, 138 Pa. St. 208, decided since the adjudication in the court below. That case was the necessary sequence of Coover's Appeal, 74 Pa. St. 143; Gallagher's Estate, 76 Pa. St. 296; and Heineman's Appeal, 92 Pa. St. 95; and these appeals. might be rested on its authority. But out of deference to the opinion of the learned court below and the argument of counsel, we have reviewed the ground there taken as if the question were still open...

The widow's statutory rights in her husband's estate are paramount to his will, and he is presumed to know that fact. It is therefore not accurate to say that his whole scheme of disposition of his property is destroyed by the widow's election. It is disarranged pro tanto, but in the absence of any reference to such contingency, or provision for it in the will, there is ordinarily nothing on which to found a presumption that he would have made any specific difference in distribution had he known she would exercise her right; certainly not that he would have decreased any of the definite pecuniary legacies to swell the amount going at the end of the list to the residuaries. No court is authorized to make a new distribution for the sake of equality. The testator's scheme must be carried out as he made it, except so far as that has been rendered impossible by the widow's action, and in so far a court of equity interferes to preserve an intent which would otherwise be sacrificed. Such interference is the pure crea tion of equity, and had its origin in the doctrine of equitable election, which compelled one taking a benefit under a will to..

acquiesce in other provisions of the same instrument which for any reasons were not binding upon him. Equity compelled him to elect, and if he chose to assert his prior rights against the will, the chancellor treated the provision of the will in his favor as forfeited, and then used the benefit created by such provision as a fund to be administered so as to carry out, as nearly as might be, the purposes of the testator which would otherwise fail.

In England, the point arose most frequently in cases where the testator, having only a life estate, or a qualified interest or power over the subject, undertook to dispose of a greater interest, to the prejudice of the legatee's legal right: Streatfield v. Streatfield, 1 White and Tudor's Lead. Cas. Eq. 340; and see the cases cited in Story's Eq. Jur., secs. 1082, 1083, note. In this country, such cases are rare; but the statutory rights of widows, as to personalty as well as dower, have frequently created the same situation, and the same doctrine has been uniformly applied. It was long a debatable question whether the refractory legatee forfeited absolutely all the benefits intended for him by the will, or only so much as might be required to make good that part of the scheme of the testator which his action had disappointed. The question can hardly be said to be entirely at rest yet; but though the foundation of the chancellor's action is a forfeiture by the assertion of a conflicting right, yet the better opinion now certainly is, that such forfeiture will be enforced only so far as may be necessary to make good the failure of the testator's other intent; in other words, it is forfeiture only for the purpose and to the extent of compensation.

The American cases, as already noted, arising chiefly from the assertion by a widow of her statutory rights against the provisions of the husband's will, have uniformly treated the benefits intended by the will for her as a fund which could be sequestrated and used as a trust to carry out the other provisions of the will. But the precise limits of the interference of equity, by way of rearrangement of the distribution of the decedent's estate, do not appear to have been much discussed. None of the cases cited by counsel touch the exact point, how far equity will interfere in behalf of mere residuary legatees, and such research as I have had opportunity to make has found but one. In Firth v. Denny, 2 Allen, 468, there was a fund provided for the widow for life, and after her death, one half of it to certain specified legatees, and the

residue of the estate, including the other half of the widow's fund, to trustees for charity. The widow elected to take against the will, and thereby took more than the fund set apart for her; but there was enough estate to pay all the definite legacies, and leave a balance for the residuaries. The court held that the ultimate loss must of course fall on the residuaries, but ordered the payment of the definite legacies to be postponed until the actual death of the widow, and the interest upon the fund in the mean time to be paid to the residuaries; and this was done, without question apparently, though the opinion says: "It does not appear exactly to what extent the election made by the widow left the residue of the estate less than it would have been if she had accepted the provision made in the will in her behalf." It was argued by distinguished counsel that the special circumstances showed that the residuary legatees, though lowest in the list, were in truth the chief objects of the testator's bounty; and as they seem to have been given the bulk of the estate, there was fair argument for such view, but the court did not put its decision on that ground. The opinion is not fortified by the citation of a single authority, nor is it reasoned out from principles. As already said, the result seems to have been accepted as the unquestionable consequence of the mere fact of the disappointment of the residuary legatees in the amount of the fund coming to them. It may be, however, that the doctrine of acceleration of the time of payment of legacies dependent on the life of the widow, by her election to take against the will, does not obtain in Massachusetts. The opinion of the court in Brandenburg v. Thorndike, 139 Mass. 102, looks in that direction, and if so, it is clear why the judge in Firth v. Denny, 2 Allen, 468, thought it unnecessary to go into reasons for the decision. It would, however, at the same time, be ample reason why Firth v. Denny, 2 Allen, 468, should not be authority in this state, where the doctrine of acceleration is firmly established: Coover's Appeal, 74 Pa. St. 143.

But the time of payment being held to be accelerated, sound reason requires us to hold that the widow's election shall be treated in all its results as equivalent to her death. The testator's disposition of his estate is interfered with pro tanto, but the court must carry it out as nearly as possible in all other respects. No departure from it can be admitted, except from necessity, and then only to the extent that necessity absolutely requires.

The amount of the legacies actually coming to the legatees is only one incident of a will. The order of precedence is another; and it does not seem necessary that the latter should be disturbed because of a change in the former. Hence no provision of the will ought to be interfered with by the court except for the preservation of one of superior, or at least equal, rank in the testator's scheme; and as residuary gifts are from their nature ordinarily the lowest in rank, no others can be interfered with for the sake of benefiting them. From their very definition, they come in last, and the testator, with knowledge of this fact, declares that they shall get nothing until after all others are paid in full. Mere diminution of the amounts coming to the residuaries does not in any way justify interference in the regular and established order of priority. When, therefore, it is said, as in Sandoe's Appeal, 65 Pa. St. 314, that equity will sequester the benefit intended for the wife to secure provision for those who are disappointed by her action, the disappointment to be understood is the failure of the testator's intent in regard to other beneficiaries. These will be protected, not for their own sakes, but of necessity, in order to preserve the wishes of the testator; and such necessity does not extend to the interference with any beneficiaries prior in rank for the sake of the residuaries. One of the chances the latter take from the nature of their position is, that the share coming to them may undergo changes in amount before the period of distribution.

There is no force in the argument that the general pecuniary legatees have no cause of complaint at being postponed until the death of the widow, as their legacies, by the terms of the will, are not payable until that event, for neither are the residuary legacies. The advancement of the time of payment is the legal consequence of the termination of the purpose of the postponement, and both the definite and the residuary legacies share this advantage in common. To postpone the definite legatees, and transfer the income of their legacies to the residuaries during the widow's life, is not in furtherance of any direction of the will, but in direct violation of the testator's intent that the definite legacies should be paid in full before the residuaries get anything. Nor is it in pursuance of the equitable doctrine of sequestration of the benefits intended for the widow; for, as already said, that never ought to reverse the testator's order of priority. Nor does it even accomplish, except by accident, its