case Radcliffe against roper reverse in h l bro p c and ed in this case three  point resolve saint if a estate be devise to be sell for payment of debt  surplus to a Roman Catholic that this surplus be in nature of a real interest  and as such void by Act of king William resolve dly that the word purchase in  that Act do include devise resolve dly that a subsequent devise to a though a  be incapable of take be a revocation of a precedent devise to b S c post S c  Mod S c Eq ab S c bro p c this be a case of consequence sir Simon Harcourt  Lord keeper be assist by sir Thomas Parker Lord chief justice of the court of  king bench sir Thomas Trevor Lord chief justice of common plea Powell judge of  the court of queen bench and sir John Trevor master of the roll the case in  substance be thus a Roman Catholic devise his land to four trustee two papist  and two protestant to be sell for the payment of debt and legacy and by a  codicil among other legacy he devise the remainder whether in land or personal  estate to two papist and their heir the question be whether this be a good  devise so as to disinherit the heir at law be a protestant notwithstanding the  will c make for prevent the growth of popery for the better understanding the  force of the argument on each side the question it will be proper to premise  the aforesaid Act by the say Act it be provide that from and after the  twentyninth day of September if any person educate in the Popish religion or  profess the same shall not within six month after be or she shall attain the  age of eighteen modern report er p take the oath of c and subscribe c 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 incapable to inherit  or take by descent devise or limitation in modern report possession reversion  or remainder any land tenement or hereditament and that during the life of  such person or until he or she do take the say oath and subscribe c the next  of his or her kindred which shall be a protestant shall have and enjoy the say  land tenement and hereditament without be Accountable for the profit by he or  her receive during such enjoyment thereof as aforesaid but in case of any  wilful waste commit on c by the person so have or enjoy the same c the party  disable his or her executor and administrator shall recover Triple damage for  the same c and that from and after the ten 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 and that all and  singular estate term and any other interest or profit whatsoever out of land  from and after the say ten of April 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 and of none effect to all intent construction and purpose  whatsoever a but see Geo c a it be argue in favour of the devise that there be  nothing in the Act to prevent papist from sell their land but the design of  the Act be rather to oblige they to sell and turn their real into personal  estate for the continuance of ancient seat in the hand of papist be esteem the  chief bulwark and support of popery thither resort jesuits c modern report if  a Roman Catholic may sell he may certain give away the money arise from the  sale to a Catholic if now a papist may do this in his lifetime why may be not  as to the reason of the thing appoint this to be do by trustee after his death  if it be object that though the estate be by the will appoint to be sell must  be in commonlaw look upon as personal estate yet it be land in equity because  it be a know rule in equity that the residuary legatee may come into the court  of chancery and pray that they may have the land upon their pave the debt and  legacy for payment of which the land be to be sell it may be answer that if a  person have his liberty to take either land or money the court will not compel  he to take the land for where then will be his liberty beside for the court as  this case be to decree he the land be to take from he what the law allow he to  take and enjoy and give he that which a Act of parliament disable he from take  and consequent will altogether overturn the will of the testator neither be  this the only case where this rule of equity may happen to fail for suppose  the surplus be devise to a alien who the law disable to take land shall this  court decree he the land that which the law will not suffer he to enjoy shall  this be esteem as a real estate it will follow that a Roman Catholic can not  charge his land with portion for young child of his own persuasion or payment  of his Popish creditor because by the same rule of equity if the land be but  sufficient for the payment of debt c the creditor may come into a court of  equity and pray the same thing if it be object that the testator himself call  it land for in the codicil he devise the remainder whether in land c it modern  report may be answer that this be but the flourish of a lawyer pen and that if  the will be comply with there can be no remainder of any real estate thus far  it be argue upon supposition that a Roman Catholic be by this Act of  parliament disable from devise real estate to a papist but that he be not it  be argue to this effect that this Act of parliament as to the first clause of  it which respect those under the age of eighteen do not create a absolute but  a conditional disability only videlicet if after the age of eighteen he do not  do so and so c and if he do not it do not even then create a total and  absolute disability but only make quasi a sequestration of the profit during  life or noncompliance then come modern report er p the second clause which  create in every papist a absolute disability to purchase land c it be true  that speak as a commonlawyer the word purchase stand oppose to descent so that  whatever estate a man do not come to by descent he do by purchase and then  purchase necessary include devise but it be not always take in such a  comprehensive sense and even in this court the word purchase be frequent use  by way of contradistinction to voluntary settlement and that it be here to be  understand in the vulgar and more common acceptation of the word appear from  the former clause respect infant where the Act make use of the word devise  limitation and descent now have they understand the word purchase in the legal  acceptation that word alone may have supply the place both of limitation and  devise beside the word in the Act immediate subsequent to purchase videlicet  in his name or to his use c seem to restrain and confine the word purchase to  some act modern report to be do by the party to who the estate move and not  from who and then for the three and last clause videlicet that all and  singular estate term and other interest or profit whatsoever out of land from  and after the ten of April to be make suffer or do c this clause shall not  make a devisee a purchaser because it be not a independent clause but  explanatory of the forgo the word such plain couple it to that to which it  wonder as only the addition of a penalty for the precede clause incapacitate a  papist to purchase it may be ask but what if he shall then come this clause  and answer the question say it shall be void to understand this clause in  another manner be to set one part of the Act at variance with the other for  whereas the first clause create but a conditional disability of take by devise  videlicet if they do not so and so after the age of eighteen c this clause  thus understand make a absolute one all this be strengthen by observe that  penal law must receive the most mild and favourable interpretation on the side  of the protestant heir at law it be insist that this be a real devise or a  devise of land for as to the objection that this court can not in this case  decree the land to the residuary legatee because that will be for this court  to decree he what he be by this Act unqualified for enjoy it be answer that  before this Act of parliament it will have be land in equity and sure it can  be pretend that there be anything in the Act to alter it it will be very  strange if this court shall after a Act of parliament make for the prevent the  growth of popery make one rule for a protestant and another in favour of a  papist and look upon the modern report same devise as real if make to a  protestant but as personal if to a papist as for the case put of remainder to  a alien it be answer that a alien may take but not for his own advantage but  that of the crown who in that case will have the land land will even at  commonlaw pass by the word profit out of land but here the testator himself in  his codicil call it land which make it a strong case and then the word  remainder which import a fee accord to Lutwyche and make it go to the heir not  to the executor show that it have the nature of a real estate and be esteem of  as such by the testator as for the objection that this will fall hard upon  young child and creditor of papist it be answer that the design of the Act be  to lie difficulty upon Roman Catholic and beside this case differ from that  because it be here the case of a residuary legatee and whether as to creditor  and young child it may not be consider as personal estate though real to the  residuary legatee and whether because the residuary legatee may pray to have  the land the creditor may do so too the counsel of the same side differ in  opinion and because the counsel for the protestant trustee have argue that if  the devise be void as to the Popish trustee the whole shall go to they it be  urge by the counsel for the protestant heir at law that the codicil be a  revocation of the will and to this purpose roll Abr be cite where land be  devise to one and after the same land be devise to the poor of the parish who  be incapable of take and it be hold notwithstanding the last devise be a  revocation of the former as to the Act of parliament that a papist be disable  by it from take land by devise it be argue modern report from the design of  the Act in general which will be whole vain and by no mean answer the end it  be design for unless this interpretation be put upon it protestant heir of  Popish ancestor will be always modern report er p disinherit and it will be  very easy to conceal a gift under a devise one need only suppose a papist make  his will and enter into a bind not to revoke it it seem strange to imagine the  legislator intend to leave Roman Catholic free to take land by devise a way  that cost they nothing and tie they up from take land by purchase a way in  which they be to pay a valuable consideration for it it have be a more  reasonable intention to have incapacitate the papist from take land this way  of all other for make a will be a serious act do often in limit at a time when  man be more than ordinary solicitous so to dispose of their possession as they  think and will be tell at least by their priest be most for the good of their  soul videlicet to those of their own communion unless this interpretation  prevail grow papist will be in a better condition than those under age which  sure be never the intention of the lawmaker as for its be a penal statute the  question be not about extend penalty but whether the Act shall not be in a  manner useless beside penal law make for the prevent public mischief have be  and may be extend as the statute of Richard that give a action of escape  against the warden of the fleet only extend by equity to all gaoler whatever  statute of pettytreason for a servant to kill his master extend to a mistress  the word purchase in a legal sense include devise and legislator may well be  suppose to be acquaint with the legal import of word modern report but the  three clause be that rely upon which it be say be not explanatory but a  independent clause refer to those above the age of eighteen for as for the  word such that do not make it explanatory of the precede clause but only refer  it to the person speak of before videlicet person profess the Popish religion  and beside it have a new commencement a plain mark of its be a new independent  clause but suppose it a explanatory one certain the precedent clause be to be  govern by the explanatory one and not vice line and without doubt the word in  the three clause do include devise for the word profit out of land may be  construe of profit arise from sale as well as continue profit certain a devise  to a papist will fall under these word estate term interest c to be make do or  suffer to the use benefit and relief of papist note it be say that a purchase  for a valuable consideration can not be include under the word relief because  the worth be pay it can not be deem any relief contra of a will in easter term  in the thirteenth year of queen whether this cause come on again in the house  of lord post bro p c michaelmas term the eleven of queen whether in the queen  bench sir Thomas Parker Knt chief justice sir Littleton powys Kilt sir Robert  Eyre Knt sir Thomas powys Knt justice sir Edward Northey Knt attorneygeneral  sir Robert Raymond Knt solicitor general