MERCHANT US. MERCHANT. there, it would have been my duty to have charged the executor with the amount of the bonds. But he sets up a gift by the testator; and in order to decide whether he is liable or not for the bonds, the question of gift must be determined. The executor himself raised this point, to exonerate himself from liability; and it is necessary to decide it in order to settle his accounts, and make a final decree for the distribution of the estate. If an executor can retain assets on the plea of a gift causâ mortis, and then successfully impeach the Surrogate's jurisdiction to inquire into the validity of this plea, the power of this court in respect to the settlement of accounts and the adjustment of estates is at an end. I am very clear that this objection is not tenable—and must therefore decree distribution, in accordance with the conclusion to which I have arrived, respecting the revocation of the donation by the testator before his decease. THOMPSON vs. QUIMBY. THOMPSON VS. QUIMBY. In the matter of proving the last will and testament of ABRAHAM G. THOMPSON, deceased. THE will contained a clause disposing of certain assets according to the terms of a schedule, but was executed without the schedule being annexed,-Held that, whether the schedule was annexed or not, the will was validly executed, having been signed at the end of those testamentary provisions which the decedent intended to incorporate in it. Mere speculative belief does not, of itself, afford a clear test of insanity. A will impeached on the ground of incapacity and undue influence, admitted to probate-there being no sufficient evidence of delusion, fraud, or imposition, the provisions of the will according with the decedent's intentions otherwise expressed, and the instrument having been prepared with care and deliberation. The following is a copy of the will propounded. "I, Abraham G. Thompson, of the city of New-York, merchant, knowing the uncertainty of human life, and that it is allotted unto all men to die, and being desirous of disposing of my worldly estate, do make, publish, and declare this to be my last will and testament-hereby revoking and declaring null and void, all and every will or wills by me previously made. "First, I direct my executors, hereinafter named, to pay all my debts owing at the time of my decease, and which at the present time are few and inconsiderable; and I desire that my body may be decently interred in the family burying-ground at Islip, Long Island, and that a suitable monument be erected over my grave, similar in appearance and design, and equal in value, to that erected THOMPSON VS. QUIMBY. over the remains of my deceased brother, Jonathan Thompson. And I hereby appropriate out of my estate the sum of one thousand dollars to defray my funeral expenses and the expenses of such monument; and it is my will that the arrangement of my funeral and burial, and the procuring of such monument, shall be under the direction and management of my nephew, Abraham G. Thompson, jun.; and I direct my executors to pay over to him the said sum of one thousand dollars for the defraying of the expenses thereof. But if it shall so happen that such sum of one thousand dollars is insufficient for the purposes aforesaid, my executors may, in their discretion, add thereto such further sum as may be necessary. "Second, I give and bequeath unto each of my nephews and nieces, sons and daughters of my deceased brother, Jonathan Thompson, five hundred dollars: that is, five hundred dollars to each nephew and five hundred dollars to each niece. I also give and bequeath five hundred dollars to my half-sister, Julia Carll. Also, two hundred and fifty dollars to Sarah Howard, daughter of my deceased half-sister, Mary. Also, two hundred and fifty dollars to my nephew, Timothy G. Carll. To Fila Hunt I give and bequeath fifteen hundred dollars; and also five hundred dollars in cash to her daughter, Catherine Knight. I give and bequeath to Daniel T. Cox, the sum of one thousand dollars, upon the express condition, however, that he accepts the same within ninety days after the day of my decease, in full satisfaction of all claims he may have on my estate. Also, I give and bequeath to my friend, William A. Smith, five hundred dollars, and to my young friend, Henry Nash, five hundred dollars. I give and bequeath to my nephew, Abraham G. Thompson, jun. (my namesake), son of my deceased brother, Jonathan Thompson, my gold watch and the gold key given to me by Thomas Richards, to be kept by him in remembrance of me. I also give and bequeath to my nephew, David THOMPSON vs. QUIMBY. Thompson, son of my brother, Jonathan, the further sum of three thousand dollars. I also give and bequeath to my nephew, Abraham G. Thompson, jun., the further sum of one thousand dollars; and when and so soon as he shall have attended to my funeral and caused the monument to be erected, with a suitable inscription thereon, to the satisfaction of two or more of my executors, I then give and bequeath to the said Abraham G. Thompson, jun., the further sum of two thousand dollars. And if, for any cause, the said Abraham G. Thompson, jun., shall not attend to said funeral and the erection of said monument, I desire that some one of my executors shall attend to the same; and I give to such executor who may take upon himself that duty, the sum of two hundred and fifty dollars, as a compensation for that particular duty. I also give and bequeath to my nephew, George W. Thompson, son of my brother, Jonathan, the further sum of two thousand dollars. I give and bequeath to my grand-daughter, Cornelia, and also to my daughter-in-law, widow of my deceased son, Edward, the sum of one hundred dollars each; and I limit this amount because they have a large property under the will of my deceased son, and because the husband of my said grand-daughter demands from me, as executor, the full legal interest on such property while it has been in my hands as executor, and which interest thus demanded is much more than I have received for the same. "I give and bequeath unto my executors and trustees, hereinafter named, and to such of them as shall take upon themselves the duty of executing the trusts of this my will, and the survivors and survivor of them, the sum of fifteen thousand dollars, in trust, to receive the income thereof, and to accumulate the same for the use of my grandson, Edward, son of my deceased son, Edward G. Thompson, until he shall arrive at the age of twenty-one years; and thereafter to pay the annual income of said accumulated THOMPSON vs. QUIMBY. fund to him during his natural life, and at his decease to pay over the principal or remainder thereof to such children or descendants as he may leave him surviving, to be divided among them according to the laws of the State of New York, or to such of them as he may by his last will appoint. But if the said Edward shall die leaving no child or lineal descendant, then it is my will that said fifteen thousand dollars, and the accumulation thereof, shall at his death fall in and become a part of my residuary estate, and be disposed of as hereinafter provided for the disposition of such residuary estate. But my wish is, that my said grandson, Edward, who is now of an age which entitles him to apply for the appointment of a guardian, shall, when he so applies, make application for the appointment as such guardian, I having heretofore been his guardian by his father's appointment, of either David Thompson, George. W. Thompson, Francis Griffin, who are named as executors in his father's will and also in this my will, or of William W. Campbell, also one of my executors, or of Joseph Sampson, one of his father's executors, or of Samuel W. Gold, of Connecticut, at whose school the said Edward is now a student. "It is my earnest wish that Joseph Sampson, who was the partner of my deceased son, Edward, and Francis Griffin, Esq., who was his school-mate and friend, and David Thompson and George W. Thompson, all of whom are named executors in his will, would, after my decease, or at least some one or more of them, qualify as such executors, and take upon themselves the duties thereof; and in that event, I request and direct my executors to pay over to the said executors of my deceased son, or either of them, all moneys herein before given to my executors in trust for my said grandson. "And in case such executors or executor of my son qualify and agree to act, then I give and bequeath unto them or him, the said sum of fifteen thousand dollars, in |