case attorneygeneral at the relation of the master and fellow of Sidney  college in Cambridge versus bains and mary his wife heir of dr Johnson all  post pale yellow Eq Rep Eq Abr pl S c Vernon S c salk wms atk Vid stat cap  Blackst comment vol two cap page a will want witness will not operate as a  appointment to a charity by the Elizabeth dr Johnson seize of several freehold  and copyhold land and possess likewise of diverse leasehold land surrender the  copyhold to the use of his will and after make his will in write whereby he  devise all his estate videlicet freehold copyhold and leasehold to trustee  heir heir and executor in trust for the maintain and provide for several poor  scholar of Sidney college in Cambridge and for diverse other charity in his  will particular express and direct and this will be all write with his own  hand but have no witness to it precedent in chancery afterward he make a  codicil wherein he recite and take notice of the will and this codicil be  subscribe by four witness and duly execute and soon after die and now this  bill be bring to have the trustee take upon they the trust and to have a  specific performance thereof it be urge in support of the charity that as to  the copyhold no question can be make but that the will be sufficient because  they do not pass by the will but by the surrender and as to the leasehold land  they be but chattel be part of the personal estate and not within the statute  of fraud and perjury as to the freehold land though the will be not effectual  as a will to pass they within the statute of fraud and perjury for want of  conform to the circumstance require by that statute yet it be good as a  appointment to a charity within the Elizabeth for which be cite   the case of  Magdalen college where want of livery and attornment shall be supply and also  Collisons case in hob roll Rep and duke on charitable use vezey where it be  hold that tenant in tail without or recovery may by will or otherwise appoint  to a charity and such appointment in case where the party have a dispose power  shall be support in favour of a charity though other ceremony to other purpose  will be requisite it be far urge that the codicil take notice of the will and  be duly execute that make the will good too as if it be affix to the will at  the time of the execution thereof for the law annex and construe it as part of  the will and the lie of it in another place signify nothing on the other side  it be insist that the will not be execute accord to the statute of fraud and  perjury can be good to pass the freehold land and the take notice of the will  in the codicil can mend it for that for ought appear may be execute precedent  in chancery in another room and the witness to that see or know nothing of the  will that devise or disposition to a charity be not in all case support that  infant feme covert and lunatic be as much disable in this as in all other case  that the reason why tenant in tail may without fine or recovery devise to a  charity be because the Elizabeth be subsequent in time have repeal the statute  de gift and by a artificial distinction between a devise and a appointment but  the car be subsequent to the Elizabeth and extend as well to a charity as any  thing else Lord chancellor I shall be very loath to break in upon the statute  of fraud and perjury in this case as there be no instance where man be so easy  impose upon as at the time of their die under the pretence of charity for the  statute require that the will shall be so and so circumstance otherwise it be  void to all intent and purpose it be true the charity of judge have carry  several case on the Elizabeth great precedent in chancery er p length and this  occasion the distinction between operate by will and appointment which sure  the maker of that statute never think of afterward it be decree that the will  not be good as a will can not operate as a appointment precedent in chancery  de boundary S HILLARII in curian porter