Roper against Radcliffe
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1795 |
| Date | 01 January 1795 |
| Court | House of Lords |
English Reports Citation: 88 E.R. 706
IN THE HOUSE OF LORDS
Reversed in H. L., 5 Bro P. C. 360 (2nd ed.).
case 121. roper against radcliffe. [Reversed in H. L., 5 Bro. P. C. 360 (2nd eel.).] If a Roman Catholic convey his estate in trust to be sold for the payment of a mortgage, and discharge of his debts, and the residue to be paid as he should by his will direct; a devise of the residue to a Papist is void by the statute 11 & 12 Will. 3, c. .-S. C. ante, 89. S. C. 9 Mod. 167, 181. S. C. 2 Eq. Abr. 508, 592, 620, 771. S. C. 1 Bro. P. C. 450. S. C. 1 Stra. 267. 8 Mod. 177, 201, 202. John Roper being seised in fee of lands in Cornwall, Gloucester, and Monmouth, did by lease and release convey the premises to William Constable, Richard Snow, and Daniel Hickmaii, and their heirs, in trust to sell the same, and out of the purchase money, and rents, until sale, to pay a debt of four thousand pounds, due to Elizabeth and Heather Walden, by mortgage of the premises, with interest; then in trust for the payment of debts mentioned in a schedule, to the deed annexed; and the overplus of the money so to be raised, to be paid as the said John Roper by any writing attested, or by his will, should appoint; and for want of such appointment, in trust for the benefit of the said John Roper and his heirs. This deed bore date the eighteenth of January 1708. On the fifth of March 1708, the said John Roper made his will, reciting the said lease and release, and the power reserved to him, in the surplus of the said real estate, and bequeathed several pecuniary legacies in the will mentioned to his relations, and the residue of [231] all his real and personal estate he gave to the respondents William Constable and Thomas Radcliffe, to Robert Hewit and Daniel Hickman, and to their heirs and assigns for ever. On the first day of April 1709, the said Roper added a codicil to his will, and thereby gave the several further legacies therein mentioned, and all the remainder, whether in lands or personal estate, he gave to his executors, the respondents Radcliffe and Constable, and soon after died. The respondents Thomas Radcliffe and William Constable brought their bill in Chancery against the appellant, and also against the said Hickman, Hewit, Snow and others, to have the trust-estate sold, and for an account of profits, and after the debts and legacies paid, to have the surplus money arising by sale, equally divided between the respondents, according to the codicil. The appellant put in his answer, insisting that he was heir at law to the testator, and intitled to all such real estate as was undisposed of by him; and that the respondents Radcliffe and Constable are, and at the time of the testator's decease were (b) This case was argued again in Easter term, the 1 Geo. 1, post, 300. But it does not appear in any of the reports of this case what judgment was given. S. C. Gilb. Rep. 307. See Gary v. Holt, 2 Stra. 1238. Helms v. Lamb, Salk. 453. 10 MOD. 232. EASTER TERM, 13 QUEEN ANNE. IN D. P. 707 Papists, and aa such, the appellant was advised, that by virtue of an Act in 11 & 12 Will, 3, made for the preventing the growth of Popery (a), the respondents were rendered " incapable of purchasing in their own names, or the names of any other persons,, to their use, or in trust for them, any manors, lands, profits out of lands, tenements, rents, terms or hereditaments, and that all and singular estates, terms, and any other interests or profits whatsoever out of lands, to be made, suffered, or done, to or for the use or behoof of any such person or persons, or upon any trust or confidence, mediately or immediately, to or for the benefit or relief of any such person or persons, shall be utterly void, &c." and that all interests or profits made out of lands to the use of the respondents were void. [232] And the appellant being heir at law, and a Protestant, claimed the benefit of the said estate, and insisted that he was iutitled to the said John Roper's real estate not sufficiently devised or conveyed by him, subject to such incurnbrances as he hrnafide had charged thereon, and by law was capable of doing, and demanded the judgment of the Court, whether he should be decreed to join in the sale. Robert Hewit and Daniel Hickman insisted by their answer, that the real estate devised by the said will ought to be considered, as to the remaining part of the testator's lands, after a sufficient part sold for the payment of debts and legacies, as land, and not as personal estate ; and that so much only ought to be sold as would be sufficient to pay the debts; and in case the respondents were incapable of taking, then the said Hewit and Hickman, the Protestant executors, claimed the estate, as being the only devisees capable to take the same; and insisted, that the codicil, with reference to the devise of the remainder of the testator's lands, did not controul...
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