
    No. 1748.
    Mowry v. Mowry.
    April Term, 1885.
    September 14, 1885.
    
      Gf. W. Brown, for appellant. Ward § Nettles, contra.
   Opinion by

Mr. Justice McIver,

Plaintiff, claiming to be the only living issue of an intestate, brought this action against the widow for partition. The defendant denied the legitimacy of the plaintiff’s father, who was the intestate’s son, and alleged that the paternal grandmother of plaintiff had never been the wife of intestate, but that she, defendant, was his only wife. Plaintiff, while willing to let the defendant have one-third of the land involved, denied that she was the lawful wife of intestate, and insisted that his grandmother was lawfully married. The Circuit Judge (Witherspoon) decreed in favor of plaintiff, giving to him one-third of the land, and defendant appealed. But as it appeared from the evidence that defendant had three children by intestate, one at least of whom was living, this court declined to pass upon the merits of the case until these children were made parties, as they were necessary parties, and had a right to be heard upon the issue involved. And to this end the judgment below was reversed without prejudice, and the cause remanded for a new trial, with leave to plaintiff to amend by making such additional parties.  