Robert Magaw, Respondent, v. William D. Field et al., Appellants

Robert Magaw, Respondent, v. William D. Field et al., Appellants. (Argued September 23, 1871; decided January term, 1872.) Action of ejectment. The question presented was as to the construction of the following clause of the will of John S. Gerritsen: “ I give, devise and bequeath to the children of Yan Brund Magaw, late of Gravesend, deceased, all that certain piece or parcel of land * * * to have and to hold the same to the said children, their heirs and assigns forever.” The will was-executed in 1833; the testator died in 1864. At the time of the execution of the will there were seven children of Yan Brund Magaw living. All had died but two before the testator’s death. The two living claimed the whole estate, and brought this action against the children of the deceased children. Held, that the devise was to a class, and only the two surviving children took under it. H. B. Hubba/rd for the appellants. P. S. GrooTee for the respondent. [MAJORITY] Leonard and Earl, CC., read for affirmance. All concur, Lott, Ch. C., not sitting. Judgment affirmed, with costs.