case sir JERMIN davers et all v sir JERMIN due et all discuss blight v  Hartnoll Ch d see also in re Natt walker v gammage Ch d in a cause bring on by  consent for the opinion of the Lord chancellor Lord chancellor king Eq can ab  pl pl a by will declare his intention to dispose of his household good by his  codicil and devise the residue of his personal estate not dispose of nor  reserve to be dispose of by his codicil to his wife afterward the testator  make a codicil and do not dispose of his household good thereby the household  good shall not go to these residuary legatee but accord to the statute of  distribution Henry late Lord Dover be seize in fee of the manor and manorhouse  of Cheevely in Cambridgeshire and have very rich good and furniture there  together with great quantity of plate and be possess of diverse leasehold  house in saint Martin and saint James Westminster by his will date the that of  January appoint Thomas folk Esq and other since decease executor leave the say  folk a legacy of pound for his trouble he give to his wife the lady Dover all  his plate whatsoever for her life ounce whereof be to be at her disposal for  ever but declare that he intend to dispose of the residue of his plate by a  codicil he give Cheevely house to his wife for life declare that he will  dispose of the good and furniture in Cheevely house after his wife death by a  codicil to his will and then by his will he bequeathe the residue of his  personal peer William estate whatsoever not before dispose of or reserve to be  dispose of by his codicil to his wife the lady Dover afterward the Lord Dover  make two codicil without dispose of his good and furniture in Cheevely house  or of the surplus beyond the ounce of plate and die in April leave several  nephew and niece by his brother and sister who all die in his lifetime but  some of they leave more child than other the lady Dover who be a papist make  her will have appoint Richard Gipps Esq and one robin executor and Mr Gipps  residuary legatee and die the that of October upon this case the follow  question be make and lie before the Lord chancellor for his opinion first it  be argue that those good and furniture in Cheevely house and the surplus of  the plate do by the Lord Dover will belong to his lady and pass to her as the  devisee of the residuum of the personal estate for that though the testator do  declare by his will that he will dispose of his good and furniture in Cheevely  house by his codicil and likewise that he intend thereby to dispose of the  residue of his plate beyond the ounce still this be no more than a intention  and he have make two codicil afterward without dispose of either of these  thing it show he have alter such his intention and choose to let they fall  into the residuum devise to his lady that as to the bequest of the surplus of  the personal estate though it be but of the residue of the personal estate not  before otherwise dispose of or reserve to be dispose of yet that do not  prevent the lady Dover take they as residuary legatee and first these word not  otherwise dispose of peer William will not bar her since the good and  furniture of the house be not otherwise dispose of by the will nothing more  appear by the will than that the testator the Lord Dover intend otherwise to  dispose of the same which he have not do and the solicitor general compare it  to the case where the testator do actual by will make a bequest of a lease for  year or other valuable thing to any person and make another residuary legatee  this be not only declare a intention that the residuary legatee shall not have  this lease but that the testator actual give it to another and in the chase  put suppose the like word be in the will as be in the present case videlicet  that the testator give the surplus of his personal estate not otherwise  dispose of by his will and then the legatee of the lease die in the testator  lifetime there will be no question but that this lease though not intend by  the will to go to the residuary legatee but actual peer William er p give from  he shall yet fall into the residue and by the like reason so shall it do in  the principal case then as to the word follow nor reserve to be dispose of by  my codicil this can be no strong than in the former case put videlicet that he  have dispose of a legacy by his codicil to one who afterward die in his the  testator lifetime which yet will not hinder it from fall into the bequest of  the residuum that it will be hard to maintain that the testator the Lord Dover  who have make a will and take so much care in his disposition ought to be  construe to die intestate as to any part of his personal estate but the Lord  chancellor be of opinion that these good and furniture in Cheevely house and  the surplus of the plate beyond the ounce be undisposed of by the will and  shall go to the next of kin accord to the statute of distribution that it be  plain the testator do not intend they peer William shall pass by the will but  reserve they to be dispose of by a subsequent codicil and if it be admit that  the Lord Dover do not intend to dispose of they by the will his lady as  residuary legatee can not thereby be entitle to they because the devise of the  surplus as pen be very strong against her give her the residue of the personal  estate not thereby otherwise dispose of or reserve to be dispose of by the  codicil now the good in question be reserve to be dispose of by the codicil  and therefore can not pass by the devise of the residuum by the will in  attorneygeneral v Johnstone Amb the particular word of the will prevent the  lapse legacy from fall into the residue Bland v lamb James W second it be  contend on behalf of Mr folk the only survive executor that he be entitle to  these thing as executor for that though there be a express legacy to he there  be the like also to the next of kin and then the executor as such have a  general right at law to all the testator personal estate not give from he by  the will say per cur Mr folk the executor have a express legacy of pound give  he for his trouble and the rest of the personal estate be dispose of or at  least intend to be dispose of by the codicil Mr folk be plain to be consider  but as a executor in trust so Andrew v clark ves contra attorneygeneral v  Hooker ante vol et vide Farrington v Knightley ante vol then it be insist that  the wife of the Lord Dover though a papist be capable of take a leasehold  estate by devise for which purpose the statute of the c S be mention whereby  it be provide that peer William from and after the that of September if any  person educate in the Popish religion or profess the same shall not within six  month after he or they shall attain the age oh eighteen take the oath of  allegiance and supremacy and conform c as by the act be require every such  person shall in respect of he or herself only and not to or in respect of any  of his or her heir or posterity be disable or make incapable to inherit or  take by descent devise or limitation in possession reversion or remainder any  land tenement or hereditament c and that during the life of such person and  until he or she shall take the oath and conform c the next of his or her  kindred which shall be a protestant shall have and enjoy the say land tenement  and hereditament without be Accountable for the profit by he or her receive  during such enjoyment but in case of any wilful waste commit on the say land c  by such person so enjoy the party disable his her or their executor or  administrator shall recover Triple damage for the same against the person  commit the same his or her executor or administrator by action of debt now as  to this the lady Dover be above the age of eighteen year and six month at the  time of pass the act and at the death of her husband the testator the Lord  Dover she be say to be perfect out of the say clause because it be impossible  for her to take the oath and conform pursuant thereto she be above the age of  eighteen and eight month before the act be make and it be represent as not  likely to be of any mischievous consequence to construe the lady Dover out of  the act as be eighteen year and eight month old when the same pass forasmuch  as there be very few now live and short will be none live who be of that age  at the time of the pass the act videlicet in and with regard to the follow  word which be peer William part of the same paragraph that from and after the  that day of April every papist or person make profession of the Popish  religion shall be disable and be hereby make incapable to purchase either in  his or her name or in the name of any other person or person to his or her use  or in trust for he or her any manor peer William er p land profit out of land  tenement rend term or hereditament in England or Wales c and all and singular  estate term and any other interest or profit whatsoever out of the land from  and after the say that of April to be make suffer or do to or for the use or  behoof of any such person or person or upon any trust or confidence mediate or  immediate to or for the benefit or relief of any such person cc or person  shall be utter void and of none effect to all intent construction and purpose  whatsoever with respect to this clause it be argue that though the word may  seem general and to take in all papist of what age soever yet they disable  such as take by purchase only and the word devise be leave out of this art of  the clause and insert in the former part show it to have be the intent of the  act that this latter shall not extend to a devise but to a purchase only where  the party papist contract for a estate which by this clause he be disable to  do and take the latter clause to extend to a devise as well as the former the  act be inconsistent for that by the latter part of the paragraph no person  whatsoever that be a papist though of any age can take whereas by the former  part a infant under the age of eighteen and a half may take if such infant  shall duly conform peer William to which the Lord chancellor reply that if  this be res integral it will be indeed very questionable but that the point  have be settle in the case of roper and Radcliffe bro p c bro p c and ed Mod  Mod in the house of lord after so solemn a debate as ought to render it  conclusive to all the court at Westminster that accord several subsequent  resolution have be make pursuant thereto and therefore to recede from this  will create great confusion and uncertainty the consequence of which be that  the word purchase must accord to the above resolution be understand of take a  estate by purchase vide hill v Filkin ante vol and he who take by devise do in  construction of law take by purchase and the word term for year be particular  mention in this clause and the latter word thereof be express that all such  estate term and interest so make shall be void his lordship be of opinion that  the lady Dover be a papist be not capable of take these leasehold estate by  virtue of her husband the Lord Dover will observe withal that the case of  roper and Radcliffe be very strong even much strong than the present in regard  that be not of a devise of land to a papist but a devise only that the land  shall be sell for payment of debt and legacy and the surplus pay to a papist  which be notwithstanding resolve to be a profit out of land and as the devisee  of the surplus may in equity on pay the debt peer William c elect to take the  land and prevent the sale therefore it be hold to be within the act whereupon  it be urge that suppose the devise of these leasehold estate to the lady Dover  be void she be a papist then the consequence will be that they must go accord  to the statute of distribution which give the wife half where there be no  child as in the present case but here it be insist by the other side that as  the wife be a papist can not take by a will so neither can she be entitle by  the statute of distribution which be a will make by the legislature for such  as have make none for themselves and it I will be put it in t power of the  papist to elude the act by say I know I can give in leasehold estate to my  wife or child that be papist but I will die intestate at least as to such  leasehold estate and then the act of parliament will give it to they though  they be papist beside there be remarkable word in the act make to prevent the  growth of popery in the clause aforesaid which say that all estate term or  interest make do or suffer to or to the use of a papist shall be void now die  intestate be suffer the estate for want of a will to go to a papist also the  intent of the act be that the papist shall not be capable of take any interest  in leasehold or freehold estate whereby they may be enable to prejudice the  government and whether such papist have the estate either through the gift of  the ancestor by his make a ill or by his die intestate it will be equal within  the mischief intend to be prevent by the act and though this may seem a  hardship it be no more still than what the act design videlicet to put  hardship upon papist in order to their conformity peer William on the contrary  it be argue that though the act do intend to put hardship on papist yet it be  only such hardship as the word and plain meaning thereof necessary import that  whether a papist be disable to take by the statute of distribution be a  question never yet determine that the term suffer this peer William er p  expression and indeed the whole paragraph be almost word for word from James S  on which so much stress have be lie be plain throw into the act as a word of  course and applicable to such conveyance as shall thereafter be make to the  use of or in trust for a papist by way of common recovery but that suppose the  word suffer be to be take in the large extent then a descent will be within  the clause and so no land can descend to a papist of above the age of eighteen  year and six month for when land come by descent to a heir it be what the  ancestor suffer to happen for want of a will that by such construction all the  freehold and leasehold estate that shall ever come to papist will be effectual  dispose of the former to the lord by way of escheat and the latter to the  crown for want of a owner last that this be a penal law and not to be extend  by any liberal construction Lord chancellor I do not know that this point be  ever in judgement but I be of opinion that a papist may take within the  statute of distribution I must recur to t e disable clause in the latter end  of the statute of the and W make to prevent the growth of popery which say  that no papist shall purchase any manor land or term c now a purchase must be  by the act of the party in peer William the way of grant or conveyance or at  least by a will but in the case of one die intestate it be the act of the law  by the same reason it shall seem that a papist be capable of take as tenant by  the courtesy or in dower it be the legislature that give these distributary  share to the widow and next of kin it be a succession ab intestate to a  personal estate similar to a descent of land where a heir though a papist as  here if above the age of eighteen and six month may inherit beside the intent  of the statute of distribution be that the administrator shall sell all the  personal estate of the intestate turn it into money and distribute it now it  will be inconsistent that the papist shall have a share of the money leave by  the intestate but not of the money raise by the administrator out of the  intestate estate in the next place it be admit on all side and decree that as  to all personal thing and in particular the good and furniture at Cheevely and  the surplus of the plate above the ounce the lady Dover the widow be entitle  to a moiety thereof by the statute of distribution the last question be  whether the personal estate which the Lord Dover have leave undisposed of by  his will shall be distribute per stirpes or per capital the Lord Dover have  leave only nephew and niece videlicet one nephew by his brother and three  nephew and two niece by a sister Whereupon it be object that be this the ease  of grandnephews and grandnieces that be next of kin peer William they shall  take per capital because the statute say there shall be no representation  among collateral after brother and sister child vide pet case ante Vol but  among nephew and niece as here there may be representation by the express word  of the statute but here Lord chancellor interrupt the counsel and say that all  these nephew and niece of the intestate be equal of kin to he and take as such  and not by representation consequent they must take per capital and not per  stirpes by have any one brother or sister be live at the Lord Dover death that  this point have be determine by the Lord summer upon great deliberation in the  case of Welsh and Welsh pre Charles and subsequent case have be resolve  agreeable thereto it be fit that matter shall now be at rest vide Lloyd v  tench ves bower v Littlewood ante Vol durant v Prestwood atk Stanley v Stanley  atk for this reason it have be determine that where a judgement be give to a  papist he can not extend the land for that will give he a interest in the land  and it be the same thing where the judgement be give in trust for a papist by  Lord Parker Lowther v Fletcher hill it may in this case be not improper to  take notice that where a person thus entitle to a distributary share die  within a year after the intestate in such case though by the statute no  distribution be to be make within a year yet the share of the decease person  will be a interest vest transmissible to his executor or administrator for in  this sense the statute make a will for the intestate and it be as if a legacy  be bequeathe Payable a year hence which will plain be a interest vest present  nay where one die without wife or issue and intestate leave a father who also  die before take out administration or alter the property of the estate though  peer William er p in that case there be only one who can claim as next of kin  and so literal and strict speak there can be no distribution yet by the  statute the right to the intestate personal estate vest in the father and  consequent belong to his executor or administrator and not to the next of kin  to the first intestate who in such case happen to be a different person grice  v grice by the Lord Cowper hill and note Mr Vernon upon this occasion tell the  reporter it have be twenty time determine in equity that where there be only  one person entitle to take the personal estate of the intestate as next of kin  the statute vest the right in that person make he as a legatee of the party  decease