(dissenting). The trust created (1) a vested remainder in the settlor’s daughter, (2) a first contingent remainder in the settlor’s son if the daughter predeceased her mother, (3) a second contingent remainder in the son’s issue if he predeceased his sister and leaves issue him surviving, and (4) a third contingent remainder in the settlor’s legal representatives who take only if all the prior contingencies were not realized. Such legal representatives take, therefore, under the deed and not by succession. Accordingly, assuming the daughter and the son both being legally capable of consent could give up their interest, they may not surrender the contingent remainders of the son’s issue and of the settlor’s representatives.
Unlike Doctor v. Hughes (225 N. Y. 305), the surrounding circumstances suggest a purpose “ to vary the course of descent or distribution as it would be regulated by law.” Here, contingent gifts in remainder were made to someone other than the settlor’s heirs, and the gift to the heirs was made only if the prior contingent remainders failed. The case, therefore, is within the rule of Whittemore v. Equitable Trust Co. (250 N. Y. 298); Schoellkopf v. Marine Trust Co. (267 id. 358), and Engel v. Guaranty Trust Co. (280 id. 43). The time designated for the settlor’s legal representatives to take was not at the death of the settlor but at the time of distribution under the terms of the trust deed.
Judgment should be rendered for the defendants.