¶1Daniel Diamond was the owner of a tract of about 714 acres of land, situate in Monongalia county, which by his will he devised to his three children Daniel Diamond, Henry Diamond, and Elizabeth Cosgray, and to the children of his daughters Catherine Smilie and Jane Barnes. The will wras admitted to probate on the 28rd day of January, 1827. It does not appear when the testator died, but it must have been a very short time before that day as there is a codicil attached to the will bearing date on the 8th day of December, 1826.
¶2*368Not long after -the will was admitted to record Ignatius Cosgray, the husband of Elizabeth Cosgray, took possession of the said tract of land and has continued to hold the same by himself and his tenants ever since.
¶3Michael Core, the appellee .here, claiming to have purchased divers interests in the said land, brought his suit against Cosgray and others to have the same partitioned.
¶4The bill claims one-fifth, one-fourth of one-fifth, one-half of one-fifth and one-third of one-fifth of said land, and charges that all the rest of the land belongs to Cosgray in his own right and in right of his wife.
¶5Cosgray insisted that Coro had no interest in any part of said land. The court below by its decrees gave to the said Core one-fifth and' three-fourths of one-fifth of said land. From these decrees Cosgray has taken this appeal.
¶6As Core claimed certain interests in the tract of land, and admitted that all the other interests belonged to Cosgray and wife, it is only necessary to ascertain whether or not Core had any interest in the said land, and if so, what is it.
¶7Core claims one-half of one-fifth of said land under a deed from Westall Barnes and Margaret his wife. Henry Diamond had two children at his death, of whom the said Margaret was one, so that Core by this deed does get one-half of one-fifth of said land.
¶8Catherine Smilie had six children living at the death of the testator, by name,'Jane, who married John Dickeson, Samuel, Smith, William, Richard and Christianna. Richard and Christianna died in the fall of 1833. Smith left the country and was last heard of in the spring of 1840, so that the presumption of law is that he was dead in the spring of 1847. Richard Smilie, the father, and Catherine, the mother of these children, were both dead before the year 1845. It nowhere appears at what time the widow of Daniel Diamond died.
¶9Core has two deeds from Samuel Smilie and wife, under which he claims one-third of one-fifth of said land, which he, the said Core, claims the said Smilie had a right to convey as one of the living children of Catherine Smilie. *369These deeds do not pass to Core any interest of the said Samuel to the said land as one of the children of the said Catherine. Samuel Smilie and wife on the 6th day of March, 1847, had conveyed all his interest to Cosgray, of ■which Core had full notice at the time he received the deeds. The interest that Samuel had and conveyed to Cosgray was one-third of one-fifth, the presumption of law being that his brother Smith Smilie was then dead.
¶10It is claimed also that by these deeds from Samuel Smilie and wife, Core got the interest of John Dickeson and Jane his wife, who was a daughter of Catherine Smilie. Jane Smilie, before her marriage with Dickeson, by her conveyance, bearing date March 6th, 1847, sold and conveyed her interest in the said land to Cosgray, but the conveyance was not recorded. After her marriage she and her husband conveyed their interest in the land to the said Samuel Smilie, who undertakes to convey the same to Core.
¶11Cosgray was in the actual possesssion of the said land by himself and his tenants claiming it as his own from long before the conveyance to him from Jane Srnilie up to, at the time of, and since the conveyances from the said Jane and her husband to the said Samuel Smilie and from him to the said Core, under which Core claims her interest. Core knew at the time he received this conveyance that Cosgray was in possession of the land claiming the whole of it; so that Core cannot by these conveyances get any title from the said Jane and husband.
¶12It is claimed that these deed from Samuel Smilie also pass the title of "William II. Bo well and Hannah his wife, who was a daughter of Jane Barnes, in the land to Core. Samuel Smilie has a deed from Bowell and wife for their interest in the said land, bearing date the 5th day of December, 1855. What was their interest at the time of this deed ?
¶13Jane Barnes had two children living at the death of the testator and three born afterwards, as I suppose during the lifetime of the testator’s widow, though it does not clearly appear at what time she died. Jane Barnes and her husband are still living.
¶14*370Three of the children of Jane Barnes died after the testator and before the date of this conveyance to Samuel Smilie by Bowell and wife. How did their interest descend ? They died without children and unmarried, so that their father is the person to whom their interest in the land descends. This will leave the interest of the said Bowell and wife at the time of their conveyance one-fifth of one-fifth of the said tract of land, which passed to the said Samuel Smilie and which by his deed passed to Core.
¶15In this manner we trace to Core title to one-half of one-fifth and one-fifth of one-fifth of said tract of land, instead of one-fifth and three-fourths of one-fifth of said tract of land given to him by the decrees of the court below. So that in this the court below erred.
¶16The defendant below, Cosgray, is entitled to all the rest of the land, either in fee, in his own right, or as tenant for life in right of his wife. The wife of Cosgray died pending the suit, and her heirs, who are his children, were made parties defendant, and the court undertook to determine as between the defendants their respective rights and interests and made partition between them wholly unasked by any of them. I think this was an error.
¶17I think the decrees should be reversed with costs, and the cause remanded with instructions to the court below to lay oft and assign to 'the said Core one-half of one-fifth of said tract of land in quantity and quality which he is entitled to under the conveyance from Westall Barnes and wife, and one-fifth of.one-fifth of said tract of land in quantity and quality, which he is entitled to under the conveyance from William II. Bowell and Hannah his wife, and that the residue of the said land be assigned to the said Ignatius Cosgray in fee simple in his own right and as tenant for life in right of his wife, according to his respective interests therein as aforesaid.
¶18Decree Beversed.