case roper against Radcliffe reverse in h l bro p c and ed if a Roman Catholic  convey his estate in trust to be sell for the payment of a mortgage and  discharge of his debt and the residue to be pay as he shall by his will direct  a devise of the residue to a papist be void by the statute will c S c ante S c  Mod S c Eq Abr S c bro p c S c stram Mod John roper be seize in fee of land in  Cornwall Gloucester and Monmouth do by lease and release convey the premise to  William constable Richard snow and Daniel Hickman and their heir in trust to  sell the same and out of the purchase money and rend until sale to pay a debt  of four thousand pound due to Elizabeth and hesther Walden by mortgage of the  premise with interest then in trust for the payment of debt mention in a  schedule to the deed annex and the overplus of the money so to be raise to be  pay as the say John roper by any write attest or by his will shall appoint and  for want of such appointment in trust for the benefit of the say John roper  and his heir this deed bear date the eighteenth of January on the five of  march the say John roper make his will recite the say lease and release and  the power reserve to he in the surplus of the say real estate and bequeathe  several pecuniary legacy in the will mention to his relation and the residue  of modern report all his real and personal estate he give to the respondent  William constable and Thomas Radcliffe to Robert Hewit and Daniel Hickman and  to their heir and assign for ever on the first day of April the say roper add  a codicil to his will and thereby give the several further legacy therein  mention and all the remainder whether in land or personal estate he give to  his executor the respondent Radcliffe and constable and soon after die the  respondent Thomas Radcliffe and William constable bring their bill in chancery  against the appellant and also against the say Hickman Hewit snow and other to  have the trustestate sell and for a account of profit and after the debt and  legacy pay to have the surplus money arise by sale equal divide between the  respondent accord to the codicil the appellant put in his answer insist that  he be heir at law to the testator and entitle to all such real estate as be  undisposed of by he and that the respondent Radcliffe and constable be and at  the time of the testator decease be modern report er p papist and as such the  appellant be advice that by virtue of a Act in will make for the prevent the  growth of popery a but see the statute Geo c a the respondent be render  incapable of purchase in their own name or the name of any other person to  their use or in trust for they any manor land profit out of land tenement rend  term or hereditament and that all and singular estate term and any other  interest or profit whatsoever out of land 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 or  person shall be utter void c and that all interest or profit make out of land  to the use of the respondent be void modern report and the appellant be heir  at law and a protestant claim the benefit of the say estate and insist that he  be entitle to the say John roper real estate not sufficient devise or convey  by he subject to such encumbrance as be good fide have charge thereon and by  law be capable of do and demand the judgement of the court whether he shall be  decree to join in the sale Robert Hewit and Daniel Hickman insist by their  answer that the real estate devise by the say will ought to be consider as to  the remain part of the testator land after a sufficient part sell for the  payment of debt and legacy as land and not as personal estate and that so much  only ought to be sell as will be sufficient to pay the debt and in case the  respondent be incapable of take then the say Hewit and Hickman the protestant  executor claim the estate as be the only devisees capable to take the same and  insist that the codicil with reference to the devise of the remainder of the  testator land do not control the devise thereof mention in the will for that  if the respondent be incapable to take the land as purchaser by the devise  they be to be esteem as person not in be and that the codicil in such case as  to the devise of the say land be void in law Harcourt Lord chancellor at the  press instance of the appellant counsel call in to his assistance Parker chief  justice of the court of king bench chief justice Trevor of the court of common  plea Powell judge of the court of king bench and sir John Trevor master of the  roll and a case be make by consent consist of three query first whether a  papist can convey his land by deed to trustee to be sell for the payment of  debt and legacy the surplus of the money to go to papist second whether he may  do this by will modern report three whether a papist be disable by this Act of  parliament from take land by devise upon argument before the Lord chancellor  and these judge it be resolve by the consent of all but Parker chief justice  that the devise of the surplusmoney after debt and legacy pay to the  respondent constable and Radcliffe be a good devise notwithstanding the say  statute for disable papist from purchase land the surplusmoney be a personal  interest in they and therefore not make void either by the word or b the  intention of that Act as to Hewit and Hickman who have bring their crossbill  they be dismiss without cost the court be of opinion that the codicil whereby  the testator give his remainder whether in land or personal estate to the  respondent Radcliffe and constable be a revocation of the devise in his will  of the residue of his personal and real estate to constable Radcliffe Hewit  and Hickman even suppose the person name in the codicil be disable by the Act  from this decree a appeal be bring in the house of lord it be argue for the  appellant by sir Joseph Jekyll and Mr Lechmere and for the respondent by sir  Robert Raymond solicitor general and sergeant Pratt N B the latter part of the  decree as to the revocation be not controvert in the house of lord but approve  of by the counsel of both side a good law the three question be speak to first  videlicet whether by this Act of parliament a papist be not exclude from take  land by devise it be insist for the appellant that he be for otherwise the  intent of the Act modern report er p will be quite overthrow which be most  certain to prevent papist from make new acquisition modern report and it be  absurd to imagine that the lawmaker shall restrain papist from purchase estate  when they be to pay a valuable consideration and leave it free for they to  take land by devise where they be to pay nothing for it there be no one word  in the law of a more determine and fix signification than purchase for it will  not be controvert but that the word purchase stand by law oppose to descent  and whoever do not come to land by descent be in the language of the law say  to take by purchase legislator be presume to speak the language of the law  they certain who make law must know what the legal import of word be and  therefore act of parliament be to be understand in a legal sense unless the  subject matter of the Act apparent hinder it so in the statute of mortmain it  have be hold that the clause whereby a licence be give to purchase land  include take by devise the other two question be resolve into one videlicet  whether the interest that be give by the will and codicil be such a interest  as a papist be restrain by the Act from take for to state the case whether a  papist be incapacitate by the Act to take the overplus be to narrow it too  much the disability be to be consider as it stand at the time of the death of  the testator and not at a future time videlicet the sale of the land that the  Act of parliament design to prevent papist from take equitable interest as  well as legal one be so very plain from the word of the Act that it can admit  of no dispute and indeed unless the Act of parliament have do this it have do  nothing at all since the use of trust be become so general and universal and  there be as sure a modern report remedy for a breach of trust in chancery as  for any legal right in a court of law it be object that the end of the Act of  parliament be plain to oblige papist to turn their real estate into personal  and therefore here be a provision for the sale of the land by positive word in  the deed of trust the end of the law be satisfy the answer be that if the  meaning of the Act be to be discover from the word of it it mean this and more  videlicet that Roman catholic shall have no handle no influence over or  interest in the estate so much as for a hour for all this decree the estate  may be continue on and the land never sell and until the land be sell the  profit of the land belong to Radcliffe if any advance have in fact be make  towards a sale this may be whole owe to the disturbance this suit have give  they who be there that will disturb they in the enjoyment of the land and  enforce this part of the decree that relate to the sale since nothing can be  get by it but only oblige a papist to turn a real estate into a personal one  there be a case now depend in the court of chancery wherein the conveyance be  settle accord to this precedent with this variation only that the trustee be  there empower to sell whenever they think convenient vane v Fletcher positive  direction to trustee to sell do not oblige they to sell and they be never  blame by a court of equity for not sell as long as beneficiary and trust enjoy  the profit and as long as his interest do not require a sale Radcliffe accord  to the decree be in effect to have the profit even before sale for since they  be to be apply to the payment of debt the residual will consequent be the  large modern report hereditament be one of the word of the Act and this import  any thing that be descendible from ancestor to heir in the earl of meath case  that go up to the house of lord a daughter be to have such a interest as money  arise from the sale of land it be esteem such a heirship as will give her the  same privilege that a heir have if such a interpretation be offer to be put  upon a Act of parliament make pro good public as will make the Act void that  be reason enough to reject it if it be object that the church be by the  statute de religious devotee disable from take land by any manner of  conveyance and thereupon this evasion be find out and suffer to take place  videlicet the church bring their action for such land as they have a mind to  purchase and judgement be suffer to go by default and this be hold unanimous  to be out of the statute and yet this a Act make pro good public and the  intent of it as plain elude as here it can possible be the answer be that this  resolution stand upon a particular maxim of law videlicet judgment To give  back in reluctant and therefore the law will never presume a fraud but no  judgement in the present case if it be say that by this mean a papist will be  incapacitate to pay his debt the answer be that we be not bind to modern  report er p account for all accident that may possible happen suppose the will  out of the case and that it have stand entire upon the deed of trust must not  the trust have attend the inheritance will not Mr roper widow have have a  claim to dower out of it or will not there different to move have be a tenant  by courtesy out of such a estate if this be so then undoubted it be a real  estate for it be the course of succession and the law of descent that be the  modern report true characteristic of and which constitute the proper  difference between real and personal estate this be so true that a annuity be  the only personal interest that can be think of which be descendible to he  heir nor be there anything in the will to turn this into a personal interest  on the contrary we find the testator himself in his will which show what be  think of it call it real estate nor be this a expression that fall from he by  chance for though it be indeed true that in the codicil be vary his expression  yet he make use of one that do more emphatical import the same thing videlicet  land his word be and all the remainder whether in land or in personal estate  that the death of the testator be the only proper time to consider whether  this interest be a real or personal one appear plain from hence that this will  will not be a disposition of it unless attest with three witness and duly  execute accord to the statute of fraud and perjury a devisee stand in the  place of the testator and can take any other estate than what it be at the  time the will take place videlicet the death of the testator upon the death of  the respondent suppose they capable the residuum will go to their heir if land  be convey to trustee to be sell for the payment of debt remainder to their  heir be not this remainder the very reversion and estate the addition of the  power to sell make no alteration in the interest it do not imply a necessity  to sell but only a power to do it upon occasion the sell or not sell remain  entire in the power of the trustee and the beneficiary and trust the heir can  compel a conveyance in chancery upon payment of the debt nay he may determine  what part of the land the trustee shall sell modern report upon the whole this  plain appear to be such a interest as carry along with it all the authority  power and influence of the land which the Act most certain design to prevent  if land be appoint to be sell for the payment of debt the heir be entitle to  the surplusmoney though no direction about it if a mortgagee sell the  surplusmoney be to be answer to the heir at law and not to the executor this  be a estate devise for the behoof and benefit of a Roman catholic because he  be to have the surplus the quantum be not material land in its own nature mean  land between protestant but it must be personal estate only to elude the Act  at the instant the testator die the right accrue and therefore the incapacity  must there attach and likewise the interest then vest in Mr roper and the turn  it afterward into money will not divest a interest already vest in the heir at  law to interpret a law so that the letter shall remain but the end be defeat  be in effect to assume a legislative power every Roman catholic will be  instruct in a easy way how to elude and frustrate this Act of parliament it be  but contract a debt or give a legacy it may be do by deed as well as by will  for if this surplus be to be consider as personal interest they be not disable  from convey a personal interest they may convey without consideration if they  conceal it nay it can be discover for a bill will not lie in equity for this  purpose because the discovery will induce a forfeiture argument for the  respondent the word purchase in the vulgar and common acceptation of it do not  import devise the word purchase be in Littleton tenor define to be the  possession modern report of land that a man come to by his own act a  definition not applicable to devise papist may come to land by descent  notwithstanding this Act and therefore why not by devise unless the legislator  think fit to prevent it there be two rule to be observe in the interpretation  of statute first such a interpretation must be make as will support the  intention of the Act second such a interpretation must be make as will make  the whole consistent with itself the general intention of this Act be by  gentle and easy method to bring papist to conformity and to prevent the  increase of their land interest and therefore the first clause express provide  that the incapacity of the ancestor shall not descend upon his posterity and  whensoever the person disable conform the disability be go if a heir be under  the age of eighteen at the time modern report er p of the descent be be  disable by the Act from take the estate unless within such a time be conform c  whereas a person over that age may take by descent or devise without any  restriction at all the reason of which difference be possible this the  legislator look upon person under the age of eighteen to be so young that they  be capable of any impression and may be easy make protestant whereas from that  age and onward they will be so rivet and confirm in their prejudice that their  conversion must be esteem as next to a impossibility now if the word purchase  in the latter clause be extend to take in devise the latter clause will ill  many respect be repugnant and contradictory to the former for whereas by the  former clause a person under the age of eighteen on the twentyninth of  September may take by devise if within six month after he attain that age he  take the oath c the latter clause modern report thus interpret make such a  person absolute incapable by the former clause though such person shall not  within six month c yet whenever he do conform the incapacity be remove and the  devise shall take place whereas by the latter thus expound he shall not the  word purchase therefore can be interpret to include devise without make the  Act contradict itself the word such be tie down to purchase and penal law be  never extend a thing that be to be do must be look upon as do it be in the  power of the trustee immediate upon the death of the devisor to sell the land  as to the objection that it appear from the decree that the profit of the land  until sale do in effect go to Radcliffe since the application of they to the  discharge of the debt must increase the surplus it may be answer that the  surplus will be more increase by have the land sell immediate the interest of  the money arise from the sale much exceed the profit of the land though a  court of equity will at the desire of the heir or residuary legatee decree  they the land yet it will not do this in spite of their tooth such a surplus  be liable to pay debt upon simple contract which land be not if this surplus  be personal estate in itself the word real in the will can alter or change the  nature of the estate there be no difference whether the money arise from the  sale of land or any other way as long as it be money the surplus of the money  arise from the sale of the land be what be devise and what the respondent have  by their bill demand as soon as they can modern report the election that a  court of equity give the heir or residuary legatee to have either the money or  land be a consequence of his be entitle to the surplusmoney and therefore to  what purpose can it serve for the land to be sell if he will take upon he the  discharge of debt and legacy and desire to have the land now therefore since a  court of equity give this election in favour of the heir or residuary legatee  it be strange to suppose that in the present case a court of equity shall take  this election away and refuse to decree he the money when by his bill he  desire it only because by Act of parliament he be incapacited to take the land  as to the objection that at the time of the conveyance it be real estate it  may be answer that the reason why the land if not sell before the death of the  ancestor shall descend to the heir at law or pass to the residuary legatee be  because it be at his election to choose either land or money but here the heir  or residuary legatee have no such election which alter the case the chancery  can not have decree a papist the land though he have desire it shall it have  do so the decree will have be void as to the objection that the land may not  be sell the answer be that the trustee by not sell will be guilty of a breach  of trust and as a breach of trust be never to be presume that can authorize a  different interpretation by profit out of land must be understand continue  profit and not money arise from sale it be reply for the appellant that the  respondent prefer their bill in equity very speedy and claim this as personal  estate be not modern report at all to the purpose for they be not oblige to  have do it at all as to the definition of the word purchase it will extend to  devise for to that the agreement of the devisee be necessary which be a act    light a speak of the several conveyance of purchase use the word in our sense  as to what be say that to include devise under the word purchase in the latter  clause will make one part of the Act of parliament contradict the other it may  be answer no for a general subsequent clause may be restrain by a precedent  one the rule that modern report er p penal law be not to be interpret by  equity hold in case of law that be penal upon particular person but not where  law be make for the public good and the peace and safety of the realm which be  the case here as for the objection frame from the statute de religious devotee  the true answer be that the power of the church be so very great in those day  as may probable have a influence upon the proceed of westminsterhall but it be  to be hope now that there will be no partiality in favour of papist and in  prejudice of a protestant heir property will be very precarious if a court of  chancery can at pleasure call a real estate a personal one or a personal a  real one the judge be summon to attend and give their opinion be divide six  against five six for reverse and five for affirm the decree have Lord Trevor  be there and stick to his former opinion there have be six against six the  decree be reverse by a great majority of the peer a see the case of Cornish v  errington Peer wms a modern report trinity term the thirteenth of queen  whether in the queen bench sir Thomas Parker Knt chief justice sir Littleton  powys Knt sir Robert Eyre Knt sir Thomas powys Knt justice sir Edward Northey  Knt attorney general sir Robert Raymond Knt solicitor general