Page:North Dakota Reports (vol. 1).pdf/241

 the provisions of the will, such real estate is equitably converted into personalty from the time of the testator’s death; and as to such real estate, the trust is a trust of personal property, and its validity is to be determined, not by the laws of the situs of the real property, but by the laws of the jurisdiction in which the testator was domiciled at the time of his death.

3. Same; No Conversion in This Case.

Provisions of the will examined and held not to create an equitable conversion of real property into personalty.

4. Void Trust; Power of Sale Under.

A power of sale dependent on a void trust falls with the trust.

PPEAL from district court, Cass county; Hon., Judge.

G. H. Phelps for appellant, (Messrs. Burnham and Tillotson of counsel) argued: That the will did not direct a conversion of the real property into personalty; that there was no express direction to sell the realty; nor does it express any clear intention that the realty should be converted. That the test is: Has the will absolutely directed that the real estate be turned into personal; Pomeroy’s Equity, §§ 1159-60; Hobson v. Hale, 95 N. Y. 88; Brewer v. Brewer, 18 N. Y. Supreme Ct. 147; Parker v. Linden 113 N. Y. 28; Scholle v. Scholle, id. ib. 261; Hunt’s Appeal, 105 Pa. St. 128; Lindley’s Appeal, 102 id. 235; Lynn v. Gephart, 27 Md. 547; Cook v. Cook, 20N. J. Eq. 375, Parker v. Glover, AtL Rep. 217; Green v. Johnson, 4 Bush 164; King v. King, 13 R. I. 501; Hammond v. Putnam, 110 Mass. 232; Shaw v. Chambers, 48 Mich. 355; Dodge v. Williams, 46 Wis. 70; Redfield on Wills, vol. 1, p. 433 and vol 2, p. 125; Ford v. Ford, 33 N. W. 188; Jones v. Thockmorton, 57 Cal. 368.

S. G. Roberts, for respondent: Argued that the power of alienation was not suspended by the will, because the real estate is devised to the trustees with power to convey; that the will clearly expresses an intention that the realty be converted. Lent v. Howard, 89 N. Y. 169; Page’s Estate, 75 Pa. St. 87; Craig v. Leslie, 3 Wheaton, 563.

, C. J. The disposition of this case depends upon the validity of a trust attempted to be created by the will of