case edward roper Esq appellant and thomas Radcliffe and William constable two  of the executor of John roper Esq decease respondent the respondent case S c  bro p c and ed devise of land to a papist be a purchase within the meaning of  the Act will to prevent the growth of popery S c post S c Mod S c Eq Abr S c  bro p c John roper be seize in fee of several manor land and tenement in the  county of Cornwall Gloucester and Monmouth do by lease and release date the  seventeenth and eighteenth day of January in the year grant and convey the  same to the respondent William constable Richard snow Daniel Hickman and their  heir in trust to sell the same and out of the money to be raise by such sale  and out of the rend and profit until sell to pay a debt of four thousand pound  to hesther and Elizabeth Walden due to they by a mortgage of the premise with  interest and after the say principal sum and interest be pay then in trust to  they for the payment of several debt mention in a schedule to the say deed of  release annex and the surplus of the say money to be pay to such person or  person as the say John roper by write under his hand attest c or by will shall  appoint and in default of such appointment then in trust for the say John  roper and his heir afterward the say John roper make his will date the five of  march recite the say lease and release and the power reserve to he therein to  dispose the surplus of the say money and devise several money legacy to  several of his relation mention in the say will and the residue of all his  real and personal estate be devise to the respondent modern report Thomas  Radcliffe and William constable Robert Hewitt and Daniel Hickman their heir  and assign for ever and make they joint executor in the year next follow  videlicet the first of April the say John roper add a codicil to his will and  thereby devise several legacy to person therein mention and all the remainder  whether in land or in personal estate he devise to his say executor Radcliffe  and constable the now respondent and in the same month videlicet the ten of  April the say John roper add another codicil to his will and thereby devise to  the say Thomas Radcliffe all his household good and power to renew the lease  of his dwellinghouse if he think fit and he devise all his book to the say  William constable and soon after he die then Thomas Radcliffe and William  constable exhibit their bill in chancery against Edward roper and against snow  and Hickman and other to have the trustestate sell and to have a account of  the profit and after the debt and legacy be pay to have the surplus money  arise by such sale equal to be divide between they to who it be devise by the  first codicil to which bill Edward roper the defendant the now appellant put  in his answer insist that he be heir at law to the say testator John roper and  entitle to all such real and personal estate not sufficient devise or convey  by he and that modern report er p the respondent Radcliffe and constable be  and at the time of the testator death be papist and person profess the popish  religion and have such be render incapable by the statute will c of purchase  any land or profit out of land and that the appellant be heir at law and a  protestant and therefore claim the benefit of that Act be capable by law so to  do and demand the judgement of the court whether he shall be decree to join in  the say sale and the other defendant Hewitt and Hickman by their answer insist  that the real estate devise by the will ought to be consider as the remain  part of the testator land after so much thereof be sell as will be sufficient  to discharge all his debt and legacy and if the other respondent Radcliffe and  constable be incapable to take they be disable by the statute because they be  papist then the say defendant Hewitt and Hickman be the two protestant  executor claim the same as be the modern report only devisees capable to take  by virtue of the will and they insist that the first codicil as it relate to a  devise of the testator land do not control the devise of the residue of the  testator land to Radcliffe and constable mention in the will because if they  be incapable by the statute to take the land by the will as purchaser they be  to be esteem as person not in be and that in such case that codicil be void in  law but admit they be capable of take the remainder by the first codicil yet  that give they no great a estate than for life and if so then the reversion in  fee must come to the defendant Hewitt and Hickman and for that purpose they  bring their crossbill insist upon this matter as they have do by their say  answer to the original bill and the several defendant and the mortgagee and  the creditor have put in their several answer and the legatee have exhibit  their bill to be pay their legacy all the say cause come to a hear the  twentyseventh of June before the Lord keeper Harcourt who take time to have  the opinion of the judge before he will make any final decree and a case be  state and argue before the Lord chief justice Parker the Lord chief justice  Trevor and judge Powell and they likewise take time to deliver their opinion  they together with sir John Trevor master of the roll concur in opinion that  the devise of the residue of his real and personal estate devise to the say  Radcliffe and constable after debt and legacy pay be a good devise  notwithstanding that statute by which papist be disable from purchase land  tenement or hereditament for the surplusmoney be a personal interest in they  and therefore the devise thereof be not void either by the word or intention  of that act and a account be decree of the testator real and personal estate  and that the real estate shall be sell to the best purchaser to be approve by  the master wherein the appellant who be heir at law shall join he be first pay  his cost and a receiver of the estate be appoint give security as usual and  the money arise by sale together with the profit of the land till sell shall  in the first place be apply to satisfy the mortgage of four thousand pound  with interest and cost and then the scheduledebts with interest and then all  the other debt stand out and not discharge by the personal estate and then the  modern report legacy shall be pay with interest and cost and the creditor be  to come in to prove their debt and as to Hewitt and Hickman the court be of  opinion that the first codicil by which the testator devise all the remainder  whether in land or personal estate to the say Radcliffe and constable be a  revocation of the devise in his will of the residue of all his real and  personal estate to Hewitt and Hickman and so their bill be dismiss with cost  from this decree a appeal be bring in the house of lord and the principal  point insist on to maintain it be that this devise be no purchase within the  statute because the word purchase in that Act must be intend where a man be  active in it and not where land be give to he by a will that as Radcliffe and  constable can take no land by this will because those be convey to trustee to  be sell for the payment of debt and legacy and the residue be devise to they  that residue be no more than a pecuniary legacy which they be capable to take  notwithstanding the statute that it be a stand rule in equity that land devise  for payment of debt and legacy be to be deem as modern report er p money and  that money devise to buy land be deem as land and so it be also of land or  money in the hand of trustee therefore as the respondent be under no manner of  conviction as papist they be just entitle to this residue but it be answer and  so resolve that this statute intend to abridge the power and interest of  papist and if a devise shall be construe to be no purchase within that Act  then papist will be in a capacity to take great part of the land in England  therefore a devise to a papist must be a purchase I e to such a papist who be  a stranger to the inheritance but not where a particular estate or interest  come to the heir at law by a devise for that be but a modification of that  estate which will otherwise descend to he so as he be under eighteen year of  age and conform within six month after he shall arrive at that age that though  land devise for payment of debt and legacy be to be deem as money so far as  there be debt and modern report specific legacy to be pay yet still the heir  at law have a interest in such land by a result trust so far as they be of  value after the debt and legacy be pay and the heir at law may proper come  into a court of equity and restrain the vendor from sell more of the land than  what be necessary to raise money sufficient to discharge the debt and legacy  and to enforce the devisee to convey the residue to he which residue shall not  be deem as money neither shall it go to the executor of the testator nay the  heir at law in such case may proper come into a court of equity and offer to  pay all the debt and legacy and pray a conveyance of the whole estate to he  for the devisee be only a trustee for the testator to pay his debt and legacy  this be a privilege which have be always allow in equity to a residuary  legatee for if he come into court and tender what will be sufficient to  discharge all the debt and legacy or pray that so much of the land and no more  may be sell than what will raise money to discharge they this be always decree  in his favour therefore though land give in trust or devise for payment of  debt and legacy shall be deem in equity as money in respect of the creditor  and legatee yet it be not so in respect to the heir at law or residuary  legatee for in those case they shall be deem in equity as land and if so then  the residue in the principal case be devise to papist it shall be deem as land  and consequent it be a purchase within the statute beforementioned for which  reason the decree be reverse in the house of lord July a see the argument of  the chief justice in this case post and the ensue case on the appeal of Lord  Derwentwater p a modern report the five of George the first before sir  Littleton powys Knt justice Tracy Knt justice sir John fortescue Knt justice  sir James Montague Knt baron sir Francis page Knt baron delegate to determine  appeal from the decree of the commissioner of forfeit estate Monday that  February