Page:North Dakota Reports (vol. 1).pdf/247

 tels may be devised for a life or lives in being, and twenty-one years afterwards, and in some cases nine months longer, provided at the end of that time the property is required to vest absolutely in some person then in being capable of disposing of the title to the same.”

Did the will equitably convert the testator’s real estate into personalty? The doctrine of equitable conversion has its origin in the maxim of equity, that that is regarded as done which should be done. It is only an application of that maxim to a certain class of facts. The future duty is the present deed. Duty is the foundation of the doctrine. Equity anticipates the accomplishment of a fact only when and because there is an obligation resting upon some one to create that fact. A direction to sell land, and convert its proceeds into money, imposes a duty. That direction may be expressed in explicit language, or it may be inferred. The duty may arise, also, because a sale and conversion are indispensable to the execution of the testator’s scheme. In such a case the main end includes all means necessary to its accomplishment. A direction to sell is implied, because without a sale the will cannot be executed as written. This is the philosophy of the doctrine of equitable conversion; and it is therefore evident that if a sale is not absolutely indispensable, and if any discretion as to the fact of sale is vested in the grantee of the power of sale, no equitable conversion results. The power of sale must be construed as a direction to sell, or there is no conversion. Our statute, therefore, employs the phraseology, “When a will directs the conversion,” etc. That statute, as we have said before, is a mere declaration of an established principle; and the framers of it were very happy in choosing the word “direct” to express this principle. Whatever conflicts there may be among the adjudications on this question in the application of the doctrine to different states of facts, that conflict does not affect the doctrine itself. There is no division with respect to it. There is not a liberal doctrine and a strict doctrine. There is only a single ultimate inquiry in each case, is the sale an absolute duty? There is really no conflict among the authorities with respect to the scope of this doctrine. Courts have differed in applying it. So have they differed in their