Misc.] Supreme Court, December, 1895. Second. To provide for her brother Marmont and his issue one-third of all she may leave and no more. Third. To give specific bequests to corporate institutions whose life and mission was to do good in this world, but with some doubt on her part as to all of these bequests being effective in law. Fourth. To dispose of the residuum of her estate, which was more or less to be estimated and not certain, by conferring upon her executors, with the approval of her rector, in whose judgment and purity of intent she had had occasion to have unbounded confidence, the power to appoint other benevolent and religious institutions as the beneficiaries, so that the last dollar which she did not give to friends would be spent in a way to gratify her own charitable heart. Recognizing, however, the doubtfulness in parts of this residuary bequest, as well as the preceding one, she determines, as she has given all to friends that she cares, to dispose of that portion of her estate which might drop from the beneficiaries she designed it for, not on account of the uncertainty of her intention, but of the contingencies which might render those intentions ineffective, by giving absolutely such dropping residuum to three friends in whom she has full confidence, with the faith that they will see their way clear to render effective her ineffective attempts, but still willing, in the exercise of her intelligent judgment, to place such residuum in their hands untrammelled save by the protection of those moral considerations upon which she relied. With her eyes open she was willing to take her chances. There is no proof in this case of any promise by Mr. Parsons, or either executor, to pass over one dollar of the property which they might receive to any other institution whatsoever. The argument of the learned counsel for the plaintiff is that because Mr. Parsons drafted the words of bequest and the words of faith and belief which Miss Edson subscribed, therefore Mr. Parsons, for himself and his executors, promised to do and perform that which Miss Edson herself believed they would do. It seems to this court that this argument distorts Supreme Court, December, 1895. [Vol. 15. the verbiage of the will. Assuming that Mr. Parsons was the author of the language, and that Miss Edson was an automaton, then such construction is correct. But I am controlled by the previous adjudication, as well as by the apparent evidences of the will itself, and must find that Miss Edson knew as well as Mr. Parsons the force of the language which she used, and certainly in regard to words which convey ideas familiar to all intelligent people and not those which are thoroughly understood by lawyers alone. She, herself, says: "I am satisfied that they will follow what they believe to be my wishes. I impose upon them, however, no conditions, leaving the same to them personally and absolutely and without limitation or restriction." Thus, in the last solemn utterance upon this subject in her life, she intelligently states it to be a matter of belief with her executors what her wishes are, and does not state it to be of knowledge; she claims no promise, but, in as strong words as might be used, releases them absolutely from all legal obligation, putting her successors outside of the pale of legal remedies because she preferred to take the chances of their doing as they believed she wished to giving the property to any one else. No actual fraud is here claimed. And there can never be constructive fraud where a person does just what she intends to do of her own free will and intelligence in passing title to others of that property which she deliberately determined to take away from her own succession. The question then comes down to this, which must be decided in the case: Is it impossible under the law of the state of New York for an owner of property, by deed, will or transfer, to absolutely give to another that property in the full expectation or belief that that other will apply it to certain specific purposes, but at the same time conferring in the transfer papers the right to disregard his wishes if that other so chose? Is there any such limitation upon the power of transfer? Could the owner afterwards, when he had repented of his act, there being no attendant fraud, recover it back? Misc.] Supreme Court, December, 1895. The design of the Mortmain Act was to protect the heirs and next of kin from the influence of advisers, exerted during the failing powers of the testator, and thus prevent a different disposition of property from that which a free and unterrorized mind would otherwise make. The statute, chapter 319 of the Laws of 1848, does not inhibit conveyances. If on the day her will was made Mary A. Edson had, by power of attorney coupled with an interest which would enable the power to survive, authorized the three gentlemen named ast her executors to convey by appointment, would there have been any legal objection to the validity of the transfer executed after her death? Given her free and intelligent understanding of all of the terms of her will, there was no trust ex maleficio created by her devise and bequest to the three persons named as executors. They had the full right to receive the residuum as their own; they had the full power to follow the dictates of their conscience in divesting themselves of that property, and placing it where they knew the testatrix wished it to go. So far as the General Term decision in the construction case is applicable to the case it is authority for the conclusions I have reached. Judgment is rendered in favor of the defendants dismissing the complaint, with costs. Complaint dismissed, with costs. THE GENESEE VALLEY & WYOMING RAILWAY Co., Plaintiff, V. THE RETSOF MINING CO., Defendant. (Supreme Court - Monroe Special Term, December, 1895.) 1. CORPORATION CANNOT REPOSSESS ITSELF OF PROPERTY BY FRAUD AND FORCE. A corporation cannot, for a real or fancied wrong, repossess itself of leased property by fraud and trickery, and then work destruction and injury thereto in a disorderly and tumultuous manner. A contract for transportation which is complete in itself, and establishes new rates, supplants a prior contract therefor. Supreme Court, December, 1895, 3. SAME REVOCATION BY STOCKHOLDERS. [Vol. 15. A contract made by the directors of a corporation pertaining to its ordinary business relations cannot be revoked by any action of its stockholders. 4. SAME DIRECTORS IN TWO CORPORATIONS. A contract between two corporations is not vitiated by the fact that some of the officers were directors in both corporations, in the absence of fraud or bad faith on their part. MOTION by the plaintiff for an injunction to restrain any interference by the defendant with the plaintiff's railroad and property during the pendency of the action. The parties are corporations duly organized under the laws of this state, the plaintiff being engaged in the operation of a railroad originally constructed by the defendant, which is the owner of large and valuable salt mines and interests in the town of York, Livingston county, as well as of the fee of the land upon which a portion of the railroad was constructed. In June, 1891, the plaintiff became the assignee of a lease made by the defendant to William Foster, Jr., and Charles Q. Freeman of the railroad above mentioned, and the equipment thereof, for the term of 999 years. This lease contained certain covenants and provisions of mutual benefit and obligation, one of which is the principal source from which flows the controversy between the parties. This provision reads as follows, viz.: "Third. The rates of freight to be charged by the lessees, or their assigns, of said railway company from Retsof shall at no time be more than one per cent per barrel (or per 300 lbs. of merchandise in not less than carload lots) in excess of the rates from time to time in effect from the existing junction points of said road on the Delaware, Lackawanna & Western railroad and Western New York & Pennsylvania railroad, and such additional tariff shall be charged only on such shipments as are not covered by contracts between the Genesee & Wyoming Valley railway and connecting railroads." And it is followed by another which permits the defendant, in the event of the failure of the lessee to observe any and all of the covenants of said lease, "to enter upon and Misc.] Supreme Court, December, 1895. take possession of and use and dispose of and for its own exclusive right all and singular the premises, property and rights hereby demised, and all contracts, fixtures, improvements and permanent property and appurtenant rolling stock which may be hereafter constructed on or added to the demised premises or any part thereof, and to exclude the lessees and all other persons wholly therefrom." Subsequently, and upon the 25th day of October, 1894, the parties hereto entered into a supplemental agreement in writing, by the terms of which the defendant agreed to ship all the "salt and products of manufacture produced by it at the works at Retsof" and to receive "all merchandise and material of every description which shall be coming to it" upon the plaintiff's railroad, in consideration of which the plaintiff agreed that it would "transport the same at not exceeding the rates that are charged and received by other railroad companies for similar transportation and service." After this agreement had been entered into the plaintiff undertook to transport the products of the defendant's mines to the various connecting lines of railroad, and in doing so charged therefor a rate which which was in excess of one cent per barrel, but which was not greater than the rates charged by other railroads, and by this very railroad while it was owned by the same parties who compose the defendant's corporation, for similar service. The defendant's officers, claiming that the plaintiff had violated its contract, undertook to avail themselves of the "re-entry" clause of the lease. But instead of resorting to the usual legal remedy, they waited until all the plaintiff's employees, save a solitary watchman, had returned to their homes upon the night of October 30, 1895, and then, sending for the watchman to come to the defendant's office upon the pretext that they desired to make him a present, delivered to him a written notification of the alleged violation of the third clause of the lease and of their intention to enforce the penalty therefor, and while this interview was in progress a gang of men, numbering more than 100, armed with clubs, and |