case edward rooper appellant the Hon t Radcliffe and other respondent saint  may where land be devise in trust to be sell in the first place for the  payment of debt and legacy and then to pay the surplus to I S a papist I S be  render incapable of take the surplus because it be not a personal interest but  a profit arise out of land and not only within the express word of stat and W  c but within the mischief which that statute be intend to prevent decree of  Lord keeper Harcourt reverse since the pass the stats Geo c Geo c by which  near all the disability impose on papist by former statute be either take away  or great modify and the stat Geo c confirm the independence of Ireland and put  a end to appeal from the court of judicature there to the English house of  lord the case on this subject be become in a great measure obselete and afford  precedent chief by the analogy they may casual bear to other subject see Mr  butler very learned note on I Inst a svo edit or additional note in folio as  to the effect of all the former and present statute relate to papist Mod Mod  vin can in n John rooper esquire be seize in fee of several manor land and  hereditament in the county of Cornwall Gloucester and Monmouth of about pound  per and by indenture of lease and release date the that and that of January in  consideration of S grant and convey all the say manor and premise to the  respondent constable Hickman and snow and their heir in trust to sell the same  for the best price and out of the money arise from such sale and by the rend  and profit in the mean time to pay in the first place a debt of pound due to  the respondent Elizabeth and Hester Walden on a mortgage of brown the premise  in Cornwall with the interest thereof then to pay the several debt specify in  the schedule annex to the release and afterward to apply the overplus as the  say John rooper by his last will or other attest write shall appoint and for  want of such appointment in trust for and for the benefit of the say John  rooper and his heir on the that of march follow Mr rooper make his will and  thereby after recite and confirm the settlement he bequeathe several pecuniary  legacy out of the surplus of the money to arise by sale of the settle estate  amount to about pound and particular to the respondent Hewett and Hickman  pound a piece for their trouble and he give the residue of his real and  personal estate to the respondent constable Radcliffe Hewett and Hickman their  heir and assign and make they joint executor the testator afterward by a  codicil to his will date the d of April give several other legacy and devise  all the remainder of his estate whether real or personal to the respondent  Radcliff and constable and by another codicil date the that of the same month  the testator give all his household good and the renewal of the lease of his  house to the respondent Radcliffe and all his book to the respondent constable  the testator soon afterward die by a act of the that and that of William  entitle a act for the further prevent the growth of popery it be inter alian  enact that from and after the that day of September if any person educate in  the popish religion or profess the same shall not within six month after he or  she shall attain the age of year take the oath of allegiance and supremacy and  also subscribe the declaration set down and express in a act of parliament  make in the that year of the reign of the late king Charles entitle a act for  the more effectual preserve the king person and government by disable papist  from sit in either house of parliament 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 and make incap brown er p able to inherit or take by  descent devise or limitation in possession reversion or remainder any land  tenement or hereditament within the kingdom of England dominion of Wales or  town of Berwick upon Tweed and 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 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 within  the kingdom of England dominion of Wales and town of Berwick upon Tweed and  that all and singular estate term and any other interest or profit whatsoever  out of land from and after the say that day of April to be make suffer or do  to or for the use or behoof of any such person or person or upon brown any  trust or confidence mediate or immediate to or for the benefit or relief of  any such person or person shall be utter void and of none effect to all intent  construction and purpose whatsoever this case be accord argue by counsel at  the Lord chief justice Parker chamber before his lordship the Lord chief  justice Trevor and Mr justice Powell but they not give any opinion thereon the  cause be again hear in the court of chancery on the that of October when Lord  Harcourt then chancellor be assist by the Lord chief justice Parker the master  of the roll the Lord chief justice Trevor and Mr justice Powell who have take  time to consider the heir at law apply by petition for the final judgement of  the court and accord on the that of February follow the Lord chancellor with  brown er p from this decree the defendant the heir at law appeal and the that  of July be appoint for the hear the appeal but application be on that day make  to the house to adjourn the hear to some further time it be thereupon order  that the say appeal shall not be hear until the next parliament and that the  court of chancery shall in the mean time direct the decree to be carry into  execution and if the real estate shall be sell in pursuance of the decree  before the appeal shall be hear the court of chancery shall thereupon order  brown satisfaction to be forthwith make to the mortgagee for pound and to the  schedule and other creditor and to the legatee of what shall be due to they  respective with interest and cost and other cost of the suit to be pay accord  to the decree but that the surplus of the money after such satisfaction as  aforesaid decree to be pay to the respondent Radcliffe and constable shall be  secure as the say court shall think most proper the same be to wait the  determination of the house on hear the appeal jour vol p pursuant to this  order the estate be sell and the surplus of the money after payment of all the  debt legacy etcetera amount to near pound in support of the appeal it be  insist I Jekyll n Lechmere that although the testator codicil devise the  remainder of his estate whether real or personal to his popish executor  Radcliffe and constable be a good revocation of the former devise to his  protestant executor Hewett and Hickman yet it do not pass the surplus of the  estate to Radcliffe and constable because be papist they be incapable of take  it for if land be to be sell the surplus devise be a interest arise out of  land and not only within the express word of the statute but within the  mischief which that statute be intend to prevent beside it be in the power of  these popish devisees by pay the debt and legacy to have enjoy the land as a  real interest as long as they please and they may do so still if the other  party shall not think fit to carry that part of the decree direct a sale into  execution wherefore it be hope that the decree will be reverse and the  appellant declare to be well entitle to the surplus of the trust estate after  payment of the debt and legacy as be the heir at law of the testator and a  protestant on the other side it be contend r Raymond I Pratt that the devise  of the surplus of the purchase money to the respondent Radcliffe and constable  be a good devise notwithstanding the statute for disable papist from purchase  land because this surplus money be a personal interest in they and therefore  not make void either by the word or intention of that statute that these  devisees be above the age of eighteen year at the time of make the act and be  under no manner of conviction whatsoever that the testator may have sell the  estate brown er p in his life time and give the residue of the money to  Radcliffe and constable consequent have power to dispose of such residue by  his will and as the estate be in fact sell and convert into money the  appellant as heir at law can have no pretence of title to any part of the  money arise from such sale the decree therefore be just find on good reason  and consonant to the rule of law and equity ought to be affirm and the appeal  dismiss with cost the argument of counsel at the bar of the house on hear this  appeal seem to be state pretty much at large in Mod et seq but after hear  counsel on both side and the judge who be order to attend have several deliver  there opinion brown it be order and adjudge that so much of the decree whereby  it be declare and decree that the surplus of the money arise by sale of the  trustestate after debt and legacy pay be a personal interest in the respondent  constable and Radcliffe and that the devise of such surplus to they be papist  be a good devise and that the same shall be pay they accord shall be reverse  and it be further order and adjudge that the surplus arise by any sale make or  to be make of any trustlands after payment of the debt and legacy affect the  same with interest and cost accord the decree shall be pay to the appellant  and that if any of the say trustslands shall remain unsold after such debt  legacy interest and cost shall be satisfy such land shall be convey by the  trustee to the appellant and his heir at his and their cost and as to the  payment of any of the simplecontract creditor out of the money arise by sale  of the trustestate in case the personal estate shall be deficient for the  payment thereof no direct complaint be make thereof by the appellant the  decree be to stand but without prejudice to the appellant apply to the court  of chancery if he conceive himself aggrieve thereby to vary the direction in  the say decree touch the payment of the simplecontract creditor as he shall be  advice and the say court of chancery be to give all such direction in  pursuance of this order as shall be just jour vol p