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.