(specially concurring) — I agree with the result of this opinion but do not think we should here concern ourselves with the validity or propriety of provisions of the purported will. It is sufficient to say it is not patently invalid. Nor should we appear to express an opinion upon the issues raised by the objections to the probate of the instrument.
The majority opinion states a former statute, now R.C.P. 298, “has direct application to the extinguishment or protection of contingent remaindermen.” Rule 298 concerns only actions for partition and is not applicable to actions of this kind.
I agree with the holding that the heirs of the last surviving beneficiary do- not belong to the same class as the named beneficiaries. The better reason for this, I believe, is that the- will gives the named beneficiaries only the income of the trust for their respective lives, while the heirs of their last survivor are remaindermen who are to take the estate absolutely and in fee.
*125McArthur v. Scott, 113 U. S. 340, 5 S. Ct. 652, 28 L. Ed. 1015, involved a factual situation similar to that in the case at bar. There the action brought by some of testator’s heirs and beneficiaries of the trust was to set aside the probate. The trustees had resigned and the only parties in court capable of representing themselves were the heirs-at-law. They filed answers confessing the bill, and the will was set aside. The decision holds the rights of unborn remaindermen were not lost.