case reech against KENNIGATE October executor promise his testator to pay  plaintiff pound legacy and say he need not put it in his will after the  testator death he say he will pay it decree for payment out of asset lib Reg b  foe S c Ves will bill by plaintiff a infant against defendant executor of  William Kennigate to be pay pound out of the asset of the testator or if there  shall not be sufficient asset then out of his own estate on the follow case  plaintiff father and the defendant be both nephew and in equal degree of  relationship to the testator who make his will and afterward have a mind to  revise it send for Mr hains the minister of the parish where he live in  Suffolk to be present who find he very ill and the plaintiff father and  defendant with he and after stay some time and talk if indifferent thing Mr  hains ask if there be any occasion for he otherwise he be go on other business  upon that the defendant pull the testator will out of his pocket and read it  and immediate plaintiff father say to the testator you promise to leave I  pound in your will the testator answer Aye so I do and then recommend it to  the defendant to pay the pound to which the defendant answer he will and will  do every thing that be right and say he need not put it into the will for he  will take care of it and then ask plaintiff father if he be satisfy who say he  be the testator die the next day Mr hains in his deposition give it as his  opinion that if the defendant have not make such promise the testator will  have alter his will and insert the pound legacy in it it also appear by the  evidence of another person that the defendant after the testator death in  conversation with a three person be ask whether he will give plaintiff father  a bind for ambler the money to which he answer he ambler er p will not give he  a bind but will pay he the money and be then ask if he will pay the money say  upon his honour he will it be insist here be only a breach of promise and to  give relief in the present case will be to break in upon the statute of fraud  and perjury but Lord Hardwicke c say the statute be not design to protect  fraud which be manifest in the present case upon the testator as well a breach  of promise to plaintiff father thou v thou for Devenish and banns Prec in Ch  vide cro Elizabeth Rookwoods case assumpsit on such a promise see the case  collect in note to Ves Fonbl Tr note d note c it be within the reason of  Oldham v Lichfield vern and decree the pound to be pay but not to take place  till after the other legacy in the will be pay he say it will be too much to  charge the defendant personal because it can not be understand he will promise  to pay the money but out of the testator effect only otherwise executor may be  draw in to their prejudice see thynn v thynn vern Oldham v Litchfield vern  barrow v Greenough Ves see what Lord Eldon say in Mestaer v Gillespie Ves see  chamberlain v agar V b Whitton v Russell atk Drakeford v Wilks atk