case soon a legatee and other Simplecontract creditor of Winifred Wareham  against Pinkard and other that July whether a creditor who be a papist be  entitle to be pay his debt out of money arise by sale of the real estate under  the appointment in the will lib Reg a foe b ham by will of that June direct  her debt to be pay and give and then the will proceed in these word in order  to raise money for these payment my estate at Benwill must be sell to the high  bidder as soon after my decease as convenient can be do to this end I do  appoint constitute and empower Mr Richard Pinkar and Mr Noah Sherwood who I  make executor of this my last will to sell let or set to sale both my estate  at Benwill and Elmingstone bill by plaintiff on behalf of herself and other  creditor and legatee to have the will establish and the trust perform and the  power execute and to be pay their debt ambler and legacy if appear that the  plaintiff soon and several of the other creditor be papist Q whether within  the statute of W against papist Murray attorneygeneral and Wilbraham for  plaintiff argue that it be not that it be not a trust but a mere power to sell  that the power must be execute and the money be legal asset and what remain  after payment of the debt and legacy will go to the personal representative  that it be the intention of the testatrix to make the estate legal asset that  such a power to executor if they die before it be execute will go to their  personal representative the distinction between such a power and a devise to  executor to sell be argue as lie down in Burwell v corrant hard prowse v  Abingdon atk in chancery Geo in the former case they be legal asset in the  latter equitable it be say that this case be not within the reason of the  determination in roper v in which case it be admit that with respect to debt  be to be consider as money though as to the residue it be legatee can take any  interest in land and have it not in their power to prevent a sale as the heir  at law have in case of a trust where he be entitle to the residue undisposed  of there be no intention here to evade the statute suppose the testatrix have  contract for sale of the estate in her lifetime and by her will have direct  the money to be apply in payment of her debt and legacy the contract in the  notion of this court will be consider as execute and as soon as the estate be  actual sell the money must have be apply accord to the will in comens Matland  v Bringloe a obiter dictum of the court as a papist may sell land in his  lifetime and pay his creditor though they shall be papist they do ambler er p  not see any reason why he may not by his will direct such sale and application  of the money to papist creditor ambler on the other side it be argue by Mr  Henley that it be a particular power to sell couple with a trust as to the  application of the money which be partial and subject to result and that it be  a rule when money be to be raise out of land for particular purpose no more  shall be raise than be sufficient to answer those purpose that therefore this  be not legal asset that the incapacity in the statute be general and S that  extend to all case where papist can take any interest or profit out of land  mediate or immediate whether as purchaser or otherwise in the present case the  plaintiff must get at the profit mediate through the executor and a sale be a  anticipation of the whole profit for ever in roper v Ratcliff it be argue that  the papist may have sell the land in his lifetime as have be argue in this  case but it do not prevail the argument equal applicable to all case upon the  statute as to the present that the present method be a evasion of the statute  and will tend to defeat the protestant next of kin have benefit of it suppose  a testator leave a son a papist such a power to sen and pay the whole money or  a large sum out of it to the son he will enjoy the estate until the protestant  next of kin shall put in his claim and then the executor will sell and pay he  the money Lord Hardwicke chancellor stop the counsel for the defendant  Eveleigh the heir at law and say that as it be a new question and of great  consequence though not of value in the present case and as he be afraid it may  lead to a new way of pass estate to papist he will not determine it without  the assistance of some of the judge who attendance he will desire in the next  term vide the decree and further proceed in this case under the name of soon  against Blount post