case JENNOR versus Harper wms S c a parole devise of pound per and out of land  to a charity though before the statute of fraud not good as a appointment by  the Elizabeth one Jennor make his will in write some time in the year and  afterward the that of December in the same year add a codicil in write and the  same day another nuncupative codicil upon which the present question arise and  thereby devise out of his land and estate in such a place pound per and for  the erection of a school and maintenance of the schoolmaster for ever this  nuncupative schedule be after his death put into write and prove as such by  three witness the school be build a d a schoolmaster put in and continue for  several year by tile executor of Jennors will but afterward the heir at law  refuse to continue the payment no school have be there keep for now about year  pass some time since a commission of charitable use be take out and the  commissioner decree the devise good and the heir at law to pay pound per and  accord to the nuncupative schedule and now upon exception to that decree the  question be whether this be a good devise precedent in chancery it be urge for  the charity that this though it be only a parole devise be a good appointment  within the Elizabeth and that that act make no difference between a  appointment by parole and a appointment by write and that this be make before  the statute of fraud and perjury though it be only by parole and so not good  within h be yet a good appointment within the Elizabeth which be subsequent in  time have repeal the former statute as to this and that a devise by tenant in  tail to a charity though not good against the issue upon the statute de gift  yet have be several time hold good against he as a appointment by the  Elizabeth which have abrogate that act as to such charitable devise but on the  other side it be urge that these devise to charity as well as other devise  must be govern by some rule that by the civil law if a man devise a charity  out of his personal estate and legacy thereout likewise to other and the  personal estate fall short to answer all the charity shall be prefer but in  this court that rule will not hold but the charity must abate in proportion to  the rest that since the statute of fraud if a man by his will give land to a  charity yet if that will be carry but imperfect into execution and so be not  good as a will it have be hold not to be good as a appointment so be dr  Johnson case ante where there be but two witness to the will indeed if a man  shall make a write on purpose to find a charity it may have another  construction but when he make a will and intend it to other purpose though he  do thereby appoint a charity yet if the will be defective as a will it shall  not operate as a appointment to support a charity that it be a long time doubt  whether a will in write though good in all circumstance shall operate as a  appointment against the issue in tall and if that be so much doubt to support  a nuncupative devise out of land to a charity will be carry it still much far  and precedent in chancery Mr William mention a case in Swinb where a man send  for a scrivener to make his will and direct precedent in chancery er p he to  give his land to such a one and his heir upon condition the scrivener write  the devise but before he have write the condition the testator die and this be  adjudge a void will for a absolute devise it can not be because the testator  do not intend it so and a conditional devise it can not be because the  condition be add after the man death that the reason a devise by tenant in  tall to a charitable use shall be good against the issue be because the  testator have it in his power by fine to have bar the issue and though he do  not live to perform that ceremony yet as a will be perfect and complete by the  aid of the Elizabeth it may work as a appointment for that at commonlaw there  be no fine nor recovery nor estate tail and therefore that statute be a  restore of the commonlaw so a deed of bargain and sale to charitable use  though not good by h for want of enrolment yet by the other act it will be  good as a appointment for that restore the commonlaw but no resolution have  ever go so far as to support a parole devise to a charity out of land because  be defective as a will which be the manner of conveyance he intend to pass it  by it can have no effect as a appointment which he do not intend and of this  opinion my Lord chancellor seem to be but take time to consider of it and  afterward decree that it be not good as a appointment precedent in chancery de  boundary S mich in curian porter