Page:North Dakota Reports (vol. 1).pdf/252

 What is the master spirit of the testament? That all the land should be sold irrespective of the question of the profit flowing from the investment; or that all land should be held and sold only in furtherance of the leading purpose to subordinate the character of the investments to the question of largest possible profits, consistent with reasonable safety? Clearly the latter.

We cannot better express our conception of the testator’s design, so far as this problem is concerned, than by quoting the language in which the counsel for the appellant in his very able and learned brief has stated that purpose: ‘The greatest amount of profit consistent with safety is the essential idea in the directions relating to investment, and in aid of which the power of sale is given.” Certainly the direction by implication to sell, there being no express direction and no absolute necessity for a sale, cannot be said to be sufficiently clear to bring it within the rule which requires the implication to be “so strong as to leave no substantial doubt.” Scholle v. Scholle, 113 N. Y. 261-270, 21 N. E. Rep. 84. “No express provision being made in the will for the conversion of the realty into personalty, every intendment is antagonistic to such an intention.” Hobson v. Hale, 95 N. Y. 596-605. We therefore hold that the real estate was not equitably converted into personalty; that the trust as to the real property within this state is to be construed by the laws of this state; and that under those laws it is void because it unlawfully suspends the absolute power of alienation. The power of sale was given only for the purpose of the trust. The trust being void the power of sale falls with it. When the grantee of a power has no beneficial interest in the execution of the power it can be exercised only for the very purpose for which it was created. Hetzel v. Barber, 69 N. Y. 13; Benedict v. Webb, 98 N. Y. 460. This last case is peculiarly in point. The court said: “It is conceded that the validity of the title tendered to the defendant pursuant to the contract depends upon the question whether the power of sale contained in the will was a valid authority, and justified the executor in making the contract. This in turn depends upon the validity of the trust created by the will in the executor. If the trust is valid we think there is no substantial objection to the title tendered. If, however, it is invalid