c oldham v Litchford S c vern Eq can ab Eq can ab Lord keeper statute of fraud  the plaintiff bill be for a annuity of pound per and which be give he by  Litchford the defendant brother and testator the case be that the testator be  make his will and among other thing be direct this gift to the plaintiff to be  insert in his will and the defendant be present desire he not to put it in his  will but say as he be a Christian he will take care to see it pay and  thereupon it be omit in the will and the plaintiff have prefer his freeman  bill for it it come to hear before the master of the roll and he decree the  payment of it and that it shall be charge upon the real estate and now upon  appeal it come before the Lord keeper and it be insist for the defendant that  there be a will in write since the statute of fraud c nothing can be part of  the will but what be in write and that no executor or administrator shall be  charge upon any promise unless it be in write and that if it have be in the  will it will have charge the defendant no far than he have asset and therefore  it ought to have be decree out of the asset only and that there be no colour  to charge it upon the land but the Lord keeper be of opinion and decree that  the defendant shall pay it and the ground he go upon be that this be a fraud  upon the testator and the legatee and that notwithstanding the statute of  fraud and perjury this court have relieve in case of a fraud Montacute v  Maxwell p wms although there be nothing in write to charge the party as in the  case where a mortgage deed be seal and the mortgagee refuse to seal the  defeazance and he cite the case of Dutton and pool Ventr t Jones lev immediate  after the statute where sir h pool be make his will and intend to raise  portion for his young child by fall of timber but his old son be by desire he  not to cut down the timber because it will deface the estate and he will  answer the value of it to his brother and sister and thereupon he forbear to  cut the timber and die and he refuse to make good his promise sir r Dutton who  marry one of the daughter bring his action upon the promise and recover this  equitable doctrine be now full establish see authority cite ante c p note but  he say he can not decree it a charge upon the land but the master of the roll  be in court say the reason he go upon to charge the land be because the  maintenance of a poor scholar be a charity and be within the statute of  Elizabeth cap but since the statute of mortmain Geo c this argument can not be  hold the last cite statute do indeed contain a proviso in favour of devise to  the university in trust for the maintenance of poor scholar but afford no  ground for declare a mere constructive trust for a individual scholar to be a  lie upon real estate under the circumstance as report and as state in req lib  from which it do not even appear that have the annuity be actual insert in the  will it be the testator intention to have charge it on his land Reg lib b fol  at the rehear the court do not think fit to charge the defendant real estate  with the payment of the say pound per annum and therefore order so much of the  former decree as charge the say real estate to be discharge but order that the  defendant shall pay the quarter be bill which be due to the plaintiff tutor  for the maintenance of the plaintiff at the university at the time of the  testator death and also the say annuity of pound per annum to the plaintiff by  quarterly payment accord to the former decree without take any account of  asset of the testator of charitable use and it may amount to a appointment  within that statute freeman er p