case oldham versus Litchfield Eq can ab pl Freem vol S c more full report Ves  a devise land to his brother and make he executor and will that out of his  personal estate and half a year rend of his real estate he shall pay his  legacy and give a annuity to his nephew to maintain he at college it be prove  that the brother promise the testator to pay the annuity otherwise he will  have charge his real estate therewith decree the real estate to be charge with  the annuity John Litchfield make his will and the defendant Abel Litchfield  his brother executor and devise to he his real estate and thereby will that  his executor out of his rend Vernon chancery case er p in arrear and other his  personal estate and out of half a year rend and profit of his real estate  after his death shall pay his debt and legacy therein after mention and by his  will among other legacy devise per and to the plaintiff his wife nephew to  maintain he at Cambridge to be pay by his brother and executor the testator  die the defendant his executor allege he have full administer the personal  estate as also the halfyear profit of the real estate which incur after the  testator death and therefore refuse to pay the forty pound per and to the  plaintiff the question be whether the real estate be Chargeable therewith or  not it be charge by the bill and prove by Mr bagshaw that the defendant  promise the testator he will pay the annuity to the plaintiff otherwise the  testator will have charge his real estate with the payment of it for the rule  of evidence on this head vide Thurlow Lord chancellor judgement in Pember v  matthews bro Ch Rep et vide Elliott v Hancock ante p Alcock v sparhawk ante p  Whitting v Russell atk and case cite in not there respective as to the case of  Whitting v Russell accord to a ms note of it Lord Hardwicke be state to say as  to Oldham v Litchfield Mr Vernon do not give the reason the court go upon but  perhaps the court look upon the promise of the executor as a confession of  asset and see reech v Kennegal ves Amb and barrow v Greenough Ves it be admit  that the will have make only the halfyear rend and profit of the real estate  liable but upon the evidence of Mr bagshaw it be decree at the roll for the  plaintiff the first decree that Feb be by the Lord keeper and appear to charge  the real estate with the legacy of pound per and for five year by quarterly  payment front the testator death and in case Elizabeth Litchfield therein name  shall not be live at the end of the say five year then the say defendant be to  pay the say pound per and by quarterly payment for two year after the say five  year accord to the say testator will together with a quarter be bill due from  the plaintiff tutor at the university at the time of the testator death on the  rehear that June so much of the decree as charge the real estate with the  payment of the annuity of pound per and be discharge but it order the  defendant to pay the testator bill and also the say legacy of pound per and  accord to the say decree without take any account of asset and also the  plaintiff cost and the cost of the rehear Reg lib b fol and affirm upon a  appeal by the Lord keeper