case hill against FILKING and his wife a devise of land to a Roman Catholic  who be under eighteen year of age at the death of the testator and conform  within six month after attain that age pursuant to will c be a good devise S c  post S c Mod S c case Ch S c Peer wms S c Eq Abr a grandmother have no child  but only a grandson and granddaughter and be a Roman Catholic she make her  will on the that of may by which will modern report er p she devise her estate  to three trustee whereof two be Roman Catholic the three a protestant she  devise the estate to be sell for the payment of her debt give a hundred pound  legacy to her grandson who be her heir at law and direct that the surplus  shall be pay to her granddaughter at her age of twentyone or marriage provide  she marry with the consent of the two Popish trustee the protestant trustee be  to be unconcern in that affair have make this will she die in July in August  the granddaughter marry a protestant by the consent of the Popish trustee at  the time of the death of the grandmother the grandson be but nine year of age  and educate in the Roman Catholic religion the granddaughter at the time of  her marriage be fifteen and likewise educate a papist and profess that  religion at the time of snake the will and of the death of the grandmother and  at the time of the marriage both grandson and granddaughter have since conform  take the oath c before they come to the age of eighteen it be the persuasion  of witness examine in the cause that the true motive that prevail with the  grandmother to disinherit her grandson her heir at law and give her estate to  the granddaughter be that the grandson be but nine year of age she do not know  but he may easy be bring up a protestant but the modern report granddaughter  be fourteen year of age and so better ground in her principle she hope will  firm adhere to the Roman Catholic religion though the Popish trustee consent  to the match and that with a protestant yet nothing be settle upon the wife  but bare her own fortune and that too subject to a power of revocation by the  husband and the Popish trustee the question now before the court be whether  this devise to the granddaughter be not void by the will c and so the grandson  entitle to have the trust of the residue decree to descend on he as heir at  law and have take the oath c as that Act require within six month after the  age of eighteen this point depend upon two clause in that Act the first clause  enact that from and after the twentyninth of September if any person educate  in the Popish religion or profess the same shall not within six month after  attain the age of eighteen take the oath c such person shall in respect of  himself only but not in respect of his heir or posterity be disable and make  incapable to inherit or take by descent devise or limitation in possession  reversion or remainder any land tenement or hereditament and that during the  life of such person or until he or she shall take the say oath c the next of  his or her kindred which shall be a protestant shall have and enjoy the say  land c without be Accountable for the profit the second clause enact that from  and after the ten of April every papist or person make profession of the  Popish religion shall be disable and make incapable to purchase either in his  or her own 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 land profit out of land tenement rend term  or hereditament c modern report it be argue for the grandson the heir at law  that it can be dispute since the case of roper v Radcliff a ante a that though  the estate be devise to be sell for the payment of debt yet as to the residuum  it must be consider as a devise of land it must likewise be admit since that  case that the word purchase in the second clause do include devise and all  manner of way of come to estate in opposition to descent and consequent that  if the granddaughter be a person that fall under the second clause this devise  to her will be void as to the description of the person to which the word  purchase in the second clause do relate it be only a papist and one profess  the Popish religion and certain the granddaughter who be prove to have be  educate in and to have profess the Popish religion at the time when the will  be make when the testatrix die the time when the right to the residuum vest  though it be to take effect in going to be videlicet at the age of twentyone  or marriage nay at the time of the marriage and so zealous in her religion as  to declare she will be tear to piece by wile horse before she will turn  heretic must be esteem one that come within the description in the Act a  papist or person make profession of the Popish religion and though she have  since conform modern report er p yet since she do not do so at the time when  the testatrix die the time when her interest vest the subsequent conformity  will not replace that interest which be now vest in another all this be so  plain that it can not in the least be controvert be the question single to be  determine upon this clause but it may be object that there be another clause  in this Act and care must be take that such a interpretation be put upon both  these clause as to make they consist with one another which I own must be do  but the modern report put of this construction upon the second clause will not  contradict anything enact by the first for whoever consider the Act well will  find that the lawmaker intend by the first clause to have regard to the estate  that then be in be and as to these it be plain that the Act never intend to  break in upon or interrupt the course of the descent but only to create a  temporary incapacity or disability of take the profit removable by conformity  before such a age and though the word devise be in that clause yet it must be  understand of such devise as be design to prevent the descent and consequent  must relate to such devisees who be heir at law will have take by descent have  it not be devise to they and have they not do this they have do nothing for  the Act may have be evade with all the ease imaginable as by the former clause  the statute provide for estate then subsist by the second it intend to provide  against all new acquisition by person profess the Roman Catholic religion and  here the legislator think it reasonable to provide against this not by create  as in the former a temporary incapacity removable by conformity but a total  and absolute incapacity to take at all as the granddaughter appear thus plain  to have be within the description of the last clause so it be no less plain  that the grandson be heir at law have by his conformity within the time  prescribe by the Act in the first clause of it put himself in a capacity of  take by descent as heir at law it be argue in favour of the granddaughter that  the great design of this Act of parliament be to encourage Roman Catholic to  turn protestant by make it their interest so to do whereas this interpretation  will be a great discouragement since by turn they be to receive no advantage  and therefore it be modern report insist that since this last clause be in  that respect more severe and create a total incapacity without restore they  upon their conformity it shall not be extend to any that can possible come  within the former and that therefore as the first clause respect person under  the age of eighteen so none shall be deem person profess the Popish religion  within the second clause but such as be above that age at the time of the  purchase and that the first clause may extend to the granddaughter be plain  the word be to take by descent limitation or devise Parker Lord chancellor the  grandson seem to I to have a strong case it be admit that the granddaughter be  within the express word of the second clause she be prove to be a person  profess the Popish religion at the time of the make the will and of the death  of her grandmother and of her narrate but it be say that this second clause  must as to the person to who it be to relate be restrain by the first so as  not to extend to any comprehend in that clause for otherwise as the disability  create by these two clause be different in their nature the one part of the  Act will contradict the other the meaning of the first clause in this Act have  be very much mistake it have be imagine that this clause have relation to the  age of the person at the time of the descent whereas the Act say nothing at  all to that matter for it be plain from the Act that the age of the person  have relation entire to the time of take the oath c not of the descent and  therefore though when the infant come to the age of eighteen the descent have  not happen yet then it be that the time prescribe by the Act for qualify c  commence in order to become capable of what may hereafter descend to he in  case be slip this time and modern report the land descend afterward the  incapacity by the Act take place nor be this any hardship since he have it in  his power by a timely conformity to have be capable of take it the first  clause in this Act of parliament have respect to old subsist estate but  whereas the lawmaker plain foresee that if they shall only use the word  descend the Act will signify just nothing therefore the word limitation and  devise be add the first to comprehend all those estate where the present  modern report er p possessor be only tenant for life the son in remainder be  to take by limitation the other of devise to prevent the interrupt the descent  and so evade the Act by devise to the heir at law the second clause have  relation to estate to be create in going to be and as to these estate the  legislator think it reasonable to create not a temporal incapacity removable  upon conformity by a certain age but a total and absolute disability to take  at all from this view of the Act of parliament it appear that the word in the  first clause devise and limitation have a proper use and signification without  break in upon the second clause for they extend to all such devise and  limitation as be not make void by the second clause of which many instance can  be give and thus it appear that the second clause be entire distinct from the  first the age of eighteen be entire immaterial Even in the opinion of the  counsel for the granddaughter the legislator do not think proper to lie person  over the age of eighteen and profess the Popish religion under the temptation  of turn protestant by give they their estate upon conformity and therefore the  argument draw by the counsel for the granddaughter from the intention of the  legislator to encourage papist to turn protestant by give they their estate  again be of no force for in the first modern report clause it be their  intention but in the second most evident it be not the only remain question  will be to fix the time when a person may be say to profess the Popish  religion and this indeed will be extreme difficult and perhaps impossible upon  account of the difference of capacity education c I can be sure that at one  two or three year of age a person can be say to profess any religion at all  and consequent not the Roman so at eighteen and before I can be sure that  person may profess the religion they be of and consequent the Roman this the  maker of the Act plain suppose when they enact that if any person profess c  shall not within six month after attain the age of eighteen c but for the  exact bind it be impossible to fix they and they must therefore be leave to  the discretion of the judge who will be very indulgent in this matter the case  be a new one and therefore I will have the assistance of the judge but his  lordship direct some issue at law to bring the case more full before the court  a this case come on again in the month of June upon the amend bill before king  Lord chancellor who decree contrary to the opinion of Lord Macclesfield in  favour of the defendant see S c post Peer wms notorious facts a