Page:North Dakota Reports (vol. 1).pdf/584

 a trustee for the owner; and, if said promises were made with intent to defraud, and with no intent to fulfill, yet the only effect of such deception was to render such party an involuntary trustee as defined by § 3920, Comp. Laws. Jasper v. Hazen, 75.

3. When it is alleged that said property, both real and personal, had been wrongfully sold by such trustee, and that the products raised on said farm by such trustee for a period of three years had also been wrongfully sold, and action is brought to recover the value of both the property and products, the plaintiff charges such party as trustee, and cannot be heard to say that the trust was never opened, or the trust relation active. Id.

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Plaintiff's remedy in such case is in equity. No action can be maintained at law by the cestui que trust against the trustee while the trust remains open, unless the exact amount due the cestui que trust has been in some manner liquidated, and no act remains to be performed except payment. Id.

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An active or express trust suspends the absolute power of alienation during its continuance, and such a trust is therefore void when it is to continue for longer than lives in being at the death of the testator. The absolute power of alienation in this state cannot be suspended for longer than the continuance of the lives in being at the testator’s death, except as provided in § 2745 of the Compiled Laws. The power to change the trust property from real to personal estate will not save the trust from the condemnation of the statute. The validity of a trust as to real estate is to be determined by the laws of its situs; as to personal property, by the laws of the domicile of the testator at the time of his death. Penfield v. Tower, 216.

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1 Where the will directs the sale of real estate expressly, or by clear implication, or where a sale is absolutely necessary to the execution of 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. Id.

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

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