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ham, during his natural life." On the death of the testatrix, on July 4, 1902, her daughters, Josephine, Emma and Minnie, were living and unmarried. Her husband predeceased her. Her daughter Minnie died, unmarried, on February 21, 1903. Josephine and Emma are still unmarried. Susan M. DeMoya, a married daughter, attacks the validity of the devise. As to the fee, more appropriate language could not well be employed to create a vested remainder, free from all ambiguity and uncertainty. The devise is clear, direct and absolute, and vested in the six children immediately upon the death of the testatrix. The provision that the three unmarried daughters, the survivors and the survivor of them, should have the use and enjoyment of the property until they married conferred upon them an estate for life, subject to defeat in case of their marriage. Dana v. Murray, 122 N. Y. 614. The evident design of the testatrix was that, as the three unmarried daughters severally married or died, the surviving unmarried daughters or daughter should succeed to the interest of the daughter or daughters first dying or marrying; and, under the authorities, the three unmarried daughters became tenants in common with cross remainders for life. Purdy v. Hayt, 92 N. Y. 455. The provision for the father's benefit need not be noticed, as the validity of the will must be determined by the facts existing at the death of the testatrix, and not those existing when the will was executed. Tallman

v. Tallman, 3 Misc. Rep. 473. Section 33 of the Real Property Law permits the creation of only two successive life estates in the same property, and the estate of the life tenants can be upheld only so far as it is in harmony with this statute. The life estate of the daughter Minnie, who first died, terminated on her death, and her enjoyment constituted one life estate in her undivided one-third share; and, if this were a simple tenancy in common, this undivided one-third share would thereupon cease and determine. There being a cross remainder, however, a second life estate in that share then vested in her two surviving unmarried sisters, and will not be exhausted until one of them dies or marries. When either of these events occurs, the limit of the statute as to that share will then be reached, and the fee will be released from

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the life estate in the undivided one-third share of Minnie Graham. When either of these two last named daughters marries or dies, one life estate in the undivided one-third share of the person so dying or marrying will cease, and a second life estate in that share will thereupon pass to the third or surviving child. This second life estate in this second undivided one-third share will not end until the marriage or death of the third daughter. This event will also terminate the first life estate in the third undivided one-third share; and, as no provision has been made for a second life estate in this third undivided share, the entire life tenancy will then expire and the fee become freed from the burden of the particular or precedent estate. It follows, therefore, that at this time the two unmarried daughters hold and possess the entire life estate in the property, subject to defeasance as already noted. They each own the undivided one-third share which they acquired on the death of the testatrix, and this has been added to by the undivided one-third share of their deceased sister Minnie, which passed to them by cross remainder on her death, and which is not yet extinguished. This result does not violate the statute forbidding more than two successive life estates in the same property. While there is no direction, express or implied, for a physical division of the life estate into separate portions, the beneficial interests of tenants in common are always distinct and separate from one another. In a life estate each undivided share of a tenant in common must be treated as a separate entity, and under the statute is entitled to its own separate tenant for two lives. Chapl. Susp. Alien, § 347. There is no suspension of the power of alienation. The statutory rule against perpetuities has no application where there are living persons who have unitedly the entire power of disposition free and untrammeled. The test of alienability is whether or not there are persons in being who can give a perfect title. Matter of Ryder, 41 App. Div. 247. There is no obstacle to the remaindermen and the life tenants giving good title now to the premises in question if they should desire to do so. There is no infirmity in the will and its validity should be upheld.

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THE NEW YORK AUTOMOBILE COMPANY v. HERBERT H. FRANKLIN, ALEXANDER T. BROWN, JOHN WILKINSON and H. H. FRANKLIN MANUFACTURING COMPANY.

(Supreme Court, Onondaga Special Term, December, 1905.)

Corporations — Officers and agents — Agreement of director to engage in similar business with others when not prohibited.

Where a mechanical engineer, who has done work upon a model for an automobile, enters the employment of a corporation organized to construct automobiles and agrees that the corporation may take out patents on his discoveries and inventions with regard to motor vehicles, and afterward constructs a second improved model, but the corporation does not raise sufficient capital to begin the business for which it is incorporated and the engineer, his salary being in arrears and unpaid, resigns his position; and where the engineer, thereafter, enters the employment of other parties who had been interested in the corporation, one of whom was a director in such corporation, and the other of whom had been negotiating to become its manager but did not take the position; and where the person who contemplated becoming manager, during such negotiations, said that another model would be required and that he would go on and build it and, if an arrangement should be made with him, he would return it to the corporation, upon being paid its cost, but, the negotiations not resulting in his assuming the management of the company, refused to turn over the new model, subsequently made, on being paid its cost, though some one on behalf of the corporation demanded that he do so; and where the engineer, under his new employment, went on to make a new model in many respects like the former one, using engines of the same type, which, however, involved no new invention or patentable feature, and made new patterns and drawings, all of which passed to a new corporation then formed for the purpose, for which new corporation the engineer continued to work until he had perfected a fourth and satisfactory model, with which the new corporation built up a large business; held:

The original company could not maintain an action against the company subsequently formed to enjoin the latter from selling such automobiles and from using any of the designs of the engineer in question and for an accounting of profits made thereby.

The director of the original corporation, who, subsequently, with others, employed the engineer after his resignation to make the

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successful model, was not, by reason of his directorship in the original corporation, prohibited from engaging in a similar business on his own account, or as one of the directors of the corporation subsequently formed, and violated no duty he owed to the original corporation by so doing.

The promise of the person who was negotiating to become the manager of the original corporation, that he would turn over the model he was about making to that corporation, was a mere voluntary promise without consideration and not binding on the corporation subsequently formed of which he was a director; and, moreover, the promise related to the third model and not to the final or fourth model which was the foundation of the business of the new corporation.

A delay of more than three years, after the promise was alleged to have been made, is too great to bring an action to compel an accounting for the profits arising from subsequent experiments and the large expenditures necessarily made.

ACTION for an injunction and an accounting.

Lewis & Crowley, for plaintiff.

Stilwell, Stilwell, Kelly & Viall (Arthur E. Parsons, of counsel), for H. H. Franklin and H. H. Franklin Manufacturing Company.

King, Waters & Page (John W. Suggett, of counsel), for Alexander T. Brown.

Hancock & Hogan, for John Wilkinson.

ANDREWS, J.

John Wilkinson is a mechanical engineer. For some time he had been interested in automobiles and, finally, on September 19, 1899, he entered into a partnership contract with Frederick D. White, Arthur R. Peck and Ernest I. White. He agreed to devote his time to the construction of an automobile, the others to contribute the amount necessary for that purpose.

Some work on a model had already been done. This was now continued and the model was completed about January 1, 1900. Experiments showed that it was not altogether

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satisfactory, but the parties seem to have believed that there was promise of final success.

Accordingly, on March 6, 1900, the New York Automobile Company was incorporated for the construction of automobiles. The partnership turned over to it whatever property it owned and received stock in return. Others likewise invested, among them the defendant Alexander T. Brown, who became a director. Mr. Wilkinson was not only a director, but he was hired by the month or week, at a fixed salary, and he agreed that, so long as he remained in the employment of the company, he would grant it the privilege of taking out patents at its expense upon all his discoveries and inventions with regard to motor vehicles. And he further agreed that whatever work he did in connection with such inventions should be considered a part of his regular employment as superintendent and engineer of the company.

At once Mr. Wilkinson began new drawings and the construction of a second model to supply the defects in the first. It was completed and running by June, 1900, and seems to have been more successful than the first model. At least, Mr. Wilkinson reported to the directors in September that his experiments had so far succeeded that the automobile was then in a marketable condition and that it did its work regularly and satisfactorily. Mr. Brown is also said to have expressed approval of the design.

Just what occurred is in dispute. The plaintiff claims that, after the report was presented, the directors determined to manufacture machines, and appointed a committee to buy machinery and secure a site. The defendants say that Messrs. Wilkinson & Brown both told the directors that it would be necessary to build still a third model. The minutes simply show that, on October fifth, a committee was appointed to report on the cost of machinery necessary to equip a plant, and that a committee on sites was directed to report at the next meeting. The minutes further show that, on October twelfth, the committee on machinery reported that it would cost about $10,000; and the committee on sites reported several places that could be secured. At the same meeting, the engineer was instructed to proceed with the con