In behalf of tbe plaintiffs a motion is made, ostensibly for a rehearing, but in reality to have tbe opinion filed made more definite and certain. Tbe failure of expression and lack of precision was entirely tbe fault of tbe writer, and was such as to justify tbe motion. Tbe only extenuating circumstance was an over-absorption in tbe weightier matters of the law involved therein.
1. By sanctioning the conclusions of law of tbe trial court, not inconsistent witb any portion of the opinion filed, it is claimed that we sanctioned tbe conclusions that all expenses, disbursements, taxes, insurance, repairs, and tbe specific shares of tbe net income bequeathed, should “ be paid and discharged exclusively witb and out of tbe net income of tbe real estate of which the testator died seized, so far as such income will pay tbe same; and only in case tbe income of such real estate shall be 'Insufficient therefor, and then only to tbe .extent of such deficiency, ought any part of such expenses or disbursements be paid out of tbe income of tbe personal estate; . . . [that] tbe whole income of tbe personal estate, . . . or so much thereof as shall not be required to cover and pay such deficiency, . . . should ... be loaned out or invested from time to time, . . . and kept so loaned or invested,” etc.
Neither this court nor tbe writer hereof bad any intention of so exonerating tbe personal- estate or tbe income *590thereof, nor of so overburdening the real estate or the income thereof. We do not think there is anything in the opinion indicating such intention. On the contrary the opinion frequently speaks of “ the net income of the estate ” as a whole, and nowhere indicates any different treatment to be observed with respect to the net income of personal estate than of the net income of real estate, except that the latter should be kept by itself by reason of possible illegal accumulations therefrom. Besides, it is stated in the opinion that real estate purchased with personal estate must from the time of such purchase be treated as real estate. It was stated on the argument, as we understand, that the accumulated income of the estate exceeded $20,000, and that there were substantially no debts. This being so, and the directions of the will by way of accumulations and bequests being confined to the net income of the estate, it seemed to us that such net income could only be ascertained by taking ■what was left of the gross income of the whole estate each year, after paying all debts, expenses, disbursements, taxes, insurance, repairs, and any other special burden upon the estate. The express directions in the will were by necessary implication, as it seemed to us, a direction to pay all debts, expenses, disbursements, taxes, insurance, repairs, and any other special burden upon the estate, out of the gross income of the whole estate, and then to treat the balance at the end of any year as the “ net income ” for such year; and then out of such net income .pay the specific legacies as directed, and the balance thereof accumulate as directed. Accordingly, the opinion states that “ almost the entire corpus of the estate, and so much as might be left of the net income of his estate after satisfying the other provisions of the will, he tied up during the lives of his daughters, respectively, for his grandchildren, to be distributed to them as indicated on the death of his daughters.” Had there been a large amount of debts, or but little *591or no accumulations of income, so that it would have been necessary to appropriate a portion of the corpus of the estate to the payment of debts, expenses, disbursements, taxes, insurance, repairs, etc., then we would .undoubtedly have directed such payments to be made from the personal estate in obedience to the well established rule of exoneration of the real estate; for, in such an event, it would have been impracticable to carry into effect the implied direction to pay the same from the gross income.
2. The learned counsel, in support of the motion, seems to think that the opinion filed is open to the construction that each of the several grandchildren born or to be born after the testator’s death, became, or will become immediately upon his birth, entitled in point of right to an equal share with all the other grandchildren in all prior accumulations of rents and profits accruing after the date of the testator’s death, and down to the time of his birth, as well as in all accumulations accruing subsequent to his birth, until he shall arrive at the age of twenty-one years, when he may claim payment of his share in full. Such was not the intention of the writer. To so construe the opinion would render a considerable portion of it superfluous, and certain portions very inconsistent, if not in direct conflict with other portions. This misapprehension may be partly in consequence of the opinion dealing mainly with the principles of law which were supposed to control the construction of the will, rather than the details of administration under the will when construed. But the opinion in this respect should be more definite and certain, and a few words and expressions modified. The opinion filed in effect states' the rule that immediately upon the death of the testator the grandchildren then in existence took a vested interest to the remainder in fee of the real estate, and an equitable right to the residue of the personal estate, but so as to open and let in any grandchildren subsequently coming into ex-*592isteuce before tbe period of distribution.' It also indicates a similar rule as to accumulations of net income of tbe estate. So it appears from the opinion filed that tbe grandchildren took such vested rights distributively, as tenants in common, and not as joint tenants. It is moreover said that “the fractional share of each grandchild to such accumulation must, if the statute will permit, be treated by itself in considering whether the direction to accumulate is valid or void. The statute seems to contemplate the same thing.”
Undoubtedly, the general scheme of the will as to the accumulations of net income, if it could be carried out, would require the equitable right to them to be regarded as vested in the grandchildren living at the death of the testator, subject to open and let in grandchildren born thereafter during the lives of the daughters on equal terms with the others, and then on the death of both of the daughters be distributed as a part of the residue and remainder of the estate under the fourth clause of the will, the same as in case, of the corpus of the estate. But the statutes against accumulations have frustrated, and, to a certain extent, nullified, the scheme of the will in that respect. Hence the opinion filed, in effect, declared that as to the grandchildren in being at the time of the testator’s death accumulations might commence at that time, but could only continue during their respective minorities; but as to any grandchildren thereafter born during the- lives of the daughters, the accumulations could only commence after they were respectively born, and then only continue during their respective minorities. These things being so, and' each grandchild taking a vested right distributively as tenants in common with the other grandchildren living at the time, and not as a joint tenant, it follows that the right of such after-born grandchild to accumulations is confined to such as accrue after his birth. Such after-born grandchild can have no right to prior accumulations, not because it is contrary to *593tbe sóbeme of tbe will, but because it is forbidden by statute. Tbe result is that at tbe birtb of every grandchild after tbe death of tbe testator and during tbe lives of tbe daughters there must be an adjustment of such accumular tions as have accrued up to that time; but tbe right to subsequent accumulations must then open so as to let in such after-born child. But tbe general scheme of tbe will is not frustrated by tbe statutes in any other respect.
3. As stated in tbe opinion filed: “ Tbe fourth clause of tbe will is to tbe effect that after tbe death of tbe testator’s daughters be gave, devised, and bequeathed all tbe residue and remainder of bis property, real and personal, to bis surviving grandchildren, a/nd to the legal issue of emy deceased grandchild or grandchildren, by way of representation •of such deceased grandchild or grandchildren, a/nd to their heirs and assigns, forever, in equal parts.” “ Any deceased grandchild or grandchildren,” as here used, manifestly means such as may die during tbe life of one or both of tbe daughters. And “ tbe legal issue of any ” such “ deceased grandchild or grandchildren ” who may survive both of tbe daughters, as well as tbe “ surviving grandchildren,” are to share in “ tbe residue and remainder ” of tbe estate. In •other words, “ all tbe residue and remainder ” of the estate, under that clause of tbe will, was, upon tbe death of the daughters, given, devised, and bequeathed by tbe testator, not to bis “ surviving grandchildren ” alone, but to them “ and to tbe legal issue of any deceased grandchild or grandchildren,” etc. That is to say, tbe word “ surviving,” as there used, expressly includes, not only such of tbe “ grandchildren ” as survive both of tbe daughters, but also such of “ tbe legal issue of any deceased grandchild or grandchildren” as survive both of tbe daughters. Tbe word “ surviving,” or survivor or survivors, is often used in this broad, comprehensive sense as including “ others,” as well as a particular class. Wilmot v. Wilmot, 8 Ves. Jr. 10; Cole *594v. Sewell, 2 H. L. Cas. 186; Smith v. Osborne, 6 H. L. Cas. 375; Badger v. Gregory, L. R. 8 Eq. Cas. 78; Harris v. Berry, 7 Bush, 113; Aiton v. Brooks, 7 Sim. 204; Hawkins v. Hamerton, 16 Sim. 410; Eyre v. Marsden, 4 Mylne & C. 231; In re Arnold's Trusts, L. R. 10 Eq. Cas. 252; In re Palmer's Settlement Trusts, L. R. 19 Eq. Cas. 320; Cross v. Maltby, L. R. 20 Eq. Cas. 378; S. C. 15 Eng. (Moak), 384. The case is distinguishable from those where the word “survivors” is applied to a particular class alone, in its ordinary or perhaps strict sense. Milsom v. Awdry, 5 Ves. Jr. 465; Davidson v. Dallas, 14 Ves. Jr. 576; Re Corbett's Trusts, Johns. Eng. Ch. 591; De Garagnol v. Liardet, 32 Beav. 608; Re Usticke, 35 Beav. 338; Benn v. Benn, L. R. 29 Ch. Div. 839.
4. But as the “residue and remainder” of the estate is not to be distributed until the death of both of the daughters, and then only to such grandchildren, and to such of the legal issue of any deceased grandchild or grandchildren, as survwe both of the daughters, it-is manifest that the share of any grandchild who may die without legal issue during the lives of the daughters must go into and become a part of such residue and remainder, and then finally be distributed to such survivors. . The same is true with respect to such of the legal issue of any deceased grandchild as may die without issue during the lives of the daughters. Doe v. Wainewright, 5 Term R. 427; Crowder v. Stone, 3 Russ. 217; Smith v. Osborne, 6 H. L. Cas. 375; Atkinson v. Barton, 3 De Gex, F. & J. 339; Atkinson v. Holtby, 10 H. L. Cas. 313; In re Tharp’s Estate, 1 De Gex, J. & S. 453; Hurry v. Morgan, L. R. 3 Eq. Cas. 152; Badger v. Gregory, L. R. 8 Eq. Cas. 78; Harris v. Berry, 7 Bush, 113; Minot v. Taylor, 129 Mass. 160; Hawkins v. Hamerton, 16 Sim. 416; Eyre v. Marsden, 4 Mylne & C. 231; In re Arnold's Trusts, L. R. 10 Eq. Cas. 252; In re Palmer's Settlement Trusts, L. R. 19 Eq. 320; Cross v. Maltby, 20 Eq. Cas. 378; S. C. 15 Eng. (Moak), 384. Such *595share of a grandchild dying during the lives of the daughters, or one of them, being given by the will expressly to such “ surviving grandchildren, and to the legal issue of my deceased grandchild,” etc., must take effect as a good cross-remainder. Doe v. Wainewright, 5 Term R. 427; Cole v. Sewell, 2 H. L. Cas. 186; Atkinson v. Barton, 3 De Gex, F. & J. 339; Atkinson v. Holtby, 10 H. L. Cas. 313; Badger v. Gregory, L. R. 8 Eq. Cas. 78.
5. Of course, there is a bare possibility that no grandchild, nor any legal issue of any deceased grandchild, will survive both of the daughters, in which event “ the residue and remainder ” could not go to survivors under the fourth clause of the will for want of a taker, and hence such “ residue and remainder” would, in that contingency,necessarily go, under the statutes, to the testator’s daughters as his heirs at law. Rut that mere possibility does not frustrate the scheme of the will. The statute expressly provides that “no future estate, otherwise valid, shall be void on the ground of the probability or improbability of the contingency on which it is limited to take effect.” Sec. 2050, R. S. 'Whether it ever takes place or not can only be demonstrated by lapse of time.
6. As to whether any grandchild can dispose of his interest in the éstate or any portion of it, prior to his coming into full enjoyment on the death of both of the daughters, that is a question which can only be properly considered when it shall arise.
7. As to the specific bequest to Henry, we have no desire to add anything to what is contained in the opinion on file.
By the Court.— The motion for a rehearing is denied.