#### MARY E. JOHNSON, *Executrix of*HEZEKIAH JOHNSON, *against*JAMES F. JOHNSON *and others.*

Where a testator ordered his estate to be divided between his wife and certain children, she to have a part for life, and, at her death, there was to be an equal division of the part held by her, amongst the same children, it was *Held*that one of the children, who had not received his share in the first division, had a right to have it made good to him in the second division.

Cause removed from the Court of Equity of Yadkin county.

James Johnson died in the year 1841, having made and published his last will and testament, in which he appointed his son, James F. Johnson, his executor, who qualified and undertook the administration of the trust confided to him.’ In this will, are contained the following clauses :

“Item. I lend unto my beloved -wife, Cassandra Johnson, the one-third part of the whole of my estate, real and personal ; the real estate to bo laid off by metes and bounds, so as to include the dwelling-house in which I now live, and all the necessary out-houses, for and during her natural life. * ***

“Item. To my son Ilezekiah Johnson, if he returns from Texas within the space of seven years from the date of my decease, I give and bequeath one equal share of my estate with the rest of my children; but if he does not return within the time specified, then, and in that case, I give and bequeath to his children the one half as much as is hereinafter bequeathed to any one of my other children.” * * *

“ Further. It is my will that all the balance of my estate be equally divided, share and share alike, between, the following of my children, namely, Harriet Tomlinson, Mary Bryson, Matilda Churchill, Julia Harbin, Curtis Johnson, James F. Johnson and "William Johnson. To those of the aforesaid children, or any of them, to whom I may have formerly loaned any' negro or negroes, the said negro or negroes are to be valued at whatever they may have been worth at the time the said children received them, and the amount of the said valuation, when ascertained, is to betaken out of said child or *438children’s individual share. And further, it is my will and desire, that at the death of my beloved wife, Cassandra, the property I have loaned her, shall be equally divided, share and share alike, between my children aforesaid, namely, Harriet Tomlinson, Mary Bryson, Matilda Churchill, Julia Harbin, Curtis Johnson, James F. Johnson, and William Johnson.”

In order to make a convenient division of the remainder of the estate according to the will, the executor advertised and sold the whole thereof. At this sale it was understood that each of the legatees should bid for his or her share of the estate, as nearly as it could be estimated, and that the amount of his or her legacy was to be deducted out of the purchases thus made. Cassandra Johnson purchased property at this sale to the amount of $3,540,35, for which she gave the executor a receipt in full for her share.

The testator, in his life-time, had advanced property to each of his children, except the plaintiff’s testator, and she insisted that, according to the terms of the will, they were bound to. account with his estate for these advancements.

The several legacies, mentioned in this will, with the except tion of the plaintiff’s testator, received tliefnll legacy to which each was entitled, and the widow, Mrs. Cassandra Johnson, received property to the amount of $3,540, for which she gave the' executor a receipt in full for her share.

The plaintiff alleges, that her testator received only $400 in a not© on Ross McClelland, and a road-wagon, worth $100, although he returned from Texas to the county of Surry, in less than two years after his father’s death. The widow had assigned to her for life, among other chattels, as evidenced by her receipt, a number of slaves, who have increased and amount, now, to the number of eleven. The widow died shortly before the filing of the bill, and the defendant Lawrence became her administrator. He had purchased the shares of Wm. Johnson apd Thomas Harbin and wife, in the. said slaves.

The plaintiff insists, that under the will of the father, she is entitled, as lie;' husband’s executor, to one-eighth of ihe whole. *439estate, reckoning as part of it the advancements made in the testator’s life-time ; and she farther insists, that she is entitled to have such eighth part made good to the estate of her testator, out of that part of it, which was lately in the hands of Mrs. Johnson, and which is now hold by her administrator. She prays for an account, and for general relief.

*Winston*and Miller, for plaintiff.

*Boyden,*for defendants.

Battle, J.

*Wq*think that the obvious construction of the will of James Johnson, is that upon the return of his son Hezekiah from Texas within the time specified, lie was to have an equal share, with the children named, in what the testator calls the balance of his estate. That balance included as well what was given to the children after the death of the testator’s widow, as what was given to them immediately, and there is nothing in the will to show that it was intended to be restricted to the latter. As the plaintiff alleges that her testator, the said Ilezekiah, has not received any part of the share to which he was entitled, the question arises whether she, as his representative, can claim to have it allotted out of the shares which were given to the widow for life, and which have corne into the possession'of the children by her death. *Wq*cannot perceive any just ground upon which such claim can be resisted. The testator’s children, among whom the balance of his estate was to be divided, are all before the Court, and a part of the common fund is still undivided; and it is but an ordinary application of the principle, that equality is equity, that a party who has heretofore had nothing, shall now have a full share of the whole assigned to him in the present division. In this division, those who claim by assignment the interests of some of the legatees, can take only so much as their respective assignors would have been entitled to.

Thero must be an account taken of the testator’s estate, and of what each of the children, including the plaintiff’s testator has received, and also an account of the slaves and other ef*440fects, which wore given to the widow for life, and which, upon her death, remain still to be divided according to the testator’s will. The commissioner appointed to take the account, will also enquire and report what assignments of the interest of any of the legatees have been made, and to whom, and the cause will be retained for further directions upon the coming in of the report.

Per Curiam, Decree accordingly.