testator and such a power of sale may be so worded as to carry a power to mortgage by implication.23 A devise for life with power to sell, transfer, and dispose of the property, or as much thereof as may from time to time be needed for the support of the devisee for life, with gift over of what remains at his death, gives to the devisee the right to mortgage the property for the purpose specified, especially where the property devised was incumbered by an outstanding mortgage so that its payment or renewal might become essential. It has been held, however, that a power to "dispose" of property does not authorize the devisee to mortgage it.25

24

471. Power to divide property between children-A testator by his will directed his widow to divide his real estate between his children, "to the best advantage as she sees fit and proper." In its decree of distribution the probate court assigned the real estate to the widow, “subject to the conditions and provisions of the will." Held, that she did not, by the terms of the decree, take the real estate for her own use and benefit, but was required to divide it between the children and in doing so could not exclude any of them.26

472. Power of tenant for life to make leases-Statute-The power of a tenant for life to make leases is not assignable as a separate interest, and will pass, unless specially excepted, by any conveyance of such estate. And if specially excepted in any such conveyance, it is extinguished.27

473. Power to do what the law does-A power is nugatory and inoperative where it directs to be done only what the law itself does.28

474. How power executed-Statute-No power can be executed except by some instrument in writing, which would be sufficient in law to pass the estate or interest intended to pass under the power, if the person executing the power were the actual owner.29 If the instrument creating the power prescribes the mode of its execution such mode must be followed.30 Where a power to dispose of property is given generally,

23 Morris v. Watson, 15 Minn. 212 (165); Kent v. Morrison, 153 Mass. 137, 26 N. E. 427; Hamilton v. Hamilton, 149 Iowa 321, 128 N. W. 380; Lardner v. Williams, 98 Wis. 514, 74 N. W. 346; 22 A. & E. Ency. of Law (2 ed.) 1156; 31 Cyc. 1080; 7 Probate Reports Ann. 687; Ann. Cas. 1916C, 601.

24 Hamilton v. Hamilton, 149 Iowa 321, 128 N. W. 380.

25 Beakey v. Knutson, 90 Or. 574, 174 Pac. 1149, 177 Pac. 955.

26 Faloon v. Flannery, 74 Minn. 38, 76 N. W. 954.

27 G. S. 1913, § 6742. See Rogers v. Clark, 104 Minn. 198, 220, 116 N. W. 739; 22 A. & E. Ency. of Law (2 ed.) 1157; 31 Cyc. 1084; 49 McKinney's Consol. Laws, N. Y. § 155.

28 Ness v. Davidson, 45 Minn. 424, 48 N. W. 10.

29 G. S. 1913, § 6766; 49 McKinney's Consol. Laws, N. Y. § 165. See 22 A. & E. Ency. of Law (2 ed.) 1106; 31 Cyc. 1120; 21 R. C. L. 792.

30 Wainwright v. Low, 132 N. Y. 313, 30 N. E. 747. See 31 Cyc. 1120.

without specifying the mode of its exercise, it may be exercised by deed or will.31

33

475. General devise as execution of power-Statute-Lands embraced in a power to devise pass by a will purporting to convey all the real property of the testator, unless the intent that the will shall not operate as an execution of the power appears expressly or by necessary implication.32 In New York this statute is applicable to personalty as well as realty. By virtue of the statute a general residuary clause will operate as an execution of the power though no reference is made to the power, unless a contrary intention affirmatively appears.34 This statute does not abrogate the common-law rule that where a donee of a power of appointment or sale also has a life estate or other interest in the subject-matter of the power, a will which makes no reference to the power will pass only the individual interest of the donee, unless there is something to show an intention to execute the power.35

476. Execution of power on death of trustee-Statute-If the trustee of a power, with the right of selection, dies, leaving the power unexecuted, its execution shall be decreed in the district court, for the benefit equally, of all the persons designated as objects of the trust. This is a declaration of a general rule applicable to all trust powers and probably governs trusts of personal as well as real property.37

36

477. Execution of power by survivors-Statute-When a power is vested in several persons, all must unite in its execution; but if, previous to such execution, one or more of such persons shall die, the power may be executed by the survivors.38

478. Execution of power by will-Statute-When a power to dispose of lands is confined to a disposition by devise or will, the instrument of execution must be a will duly executed according to the provisions of law relating to wills of real and personal estate.39 A power to dispose

31 22 A. & E. Ency. of Law (2 ed.) 1107; 31 Cyc. 1117; 21 R. C. L. 792; L. R. A. 1916C, 1048.

32 G. S. 1913, § 6778. See Thomson v. Fidelity Trust Co. (Pa.) 110 Atl. 770; 31 Cyc. 1128; 21 R. C. L. 796; 49 McKinney's Consol. Laws, N. Y. § 176; 64 L. R. A. 849; 16 Ann. Cas. 206; Ann. Cas. 1914D, 586; 32 Harv. L. Rev. 437.

33 See Hutton v. Benkard, 92 N. Y. 295; Lockwood v. Mildeberger, 159 N. Y. 181, 53 N. E. 803.

34 Lockwood v. Mildeberger, 159 N. Y. 181, 53 N. E. 803; McLean v. McLean, 160 N. Y. S. 949; Rhode Island Hospital Trust Co. v. Dunnell, 34 R. I. 394, 83 Atl. 858. See Hassam v. Hazen, 156 Mass. 93, 30 N. E. 469; Russell v. Joys,

227 Mass. 263, 116 N. E. 549; 64 L. R.
A. 849; 16 Ann. Cas. 206.
35 See § 482.

36 G. S. 1913, § 6754; 49 McKinney's Consol. Laws, N. Y. § 160.

37 See Holland v. Alcock, 108 N. Y. 312, 16 N. E. 305.

38 G. S. 1913, § 6765; Illinois Steel Co. v. Konkel, 146 Wis. 556, 131 N. W. 842. See 22 A. & E. Ency, of Law (2 ed.) 1103; 31 Cyc. 1108; 49 McKinney's Consol. Laws, N. Y. § 166; 50 L. R. A. (N. S.) 626.

39 G. S. 1913, § 6768; 49 McKinney's Consol. Laws, N. Y. § 167; Nabors v. Woolsey, 174 Ala. 289, 56 So. 533; 31 Cyc. 1120; 21 R. C. L. 793; 64 L. R. A. $49.

of property by will only is limited to that mode of disposition and cannot be executed by grant. Equity will not specifically enforce a contract to exercise a power of appointment by will in favor of one who advanced money to the donee of the power. The donee of a power to dispose of property by will cannot bargain away the right. 40

479. Excess of power in execution-Statute-No disposition by virtue of a power shall be void, in law or equity, on the ground that it is more extensive than was authorized by the power; but every estate or interest so created, so far as embraced by the terms of the power, shall be good and valid. A devise of a life estate may be made under a power to devise a fee.12

41

42

43

480. Defective execution remedied in equity-Statute-When the execution of a power in trust is defective, in whole or in part, its proper execution may be decreed in equity, in favor of the person designated as the object of the trust. The power of a court of equity to remedy a defective execution of a power is limited to matters of form. It cannot supply omissions of statutory requirements.** To relieve against the defective execution of a power, it must appear that there was a fixed intent to execute the power on a sufficient consideration, and an attempt to execute that intent, partial in its nature, and falling short of accomplishing the purpose by reason of some defect in the instrument by which the attempt was made.45

46

481. When execution of power devolves on court-Statute-When a power in trust is created by will, and the testator has omitted to designate by whom the power is to be executed, its execution shall devolve on the district court. This statute does not require the designation to be by express words. A designation by necessary implication takes the case out of the statute. Cases where an executor has an implied power of sale do not fall within the statute. It may be applicable to trusts in personalty as well as realty.48

47

482. Deed under power need not recite or refer to it-Statute-Every instrument executed by the grantee of a power, conveying an estate or

40 Farmers Loan & Trust Co. v. Mortimer, 219 N. Y. 290, 114 N. E. 389. See Ann. Cas. 1918E, 1161.

41 G. S. 1913, § 6775. See Thomas v. Joslyn, 30 Minn. 388, 15 N. W. 675; Hillen v. Iselin, 144 N. Y. 365, 39 N. E. 368; 31 Cyc. 1146; 49 McKinney's Consol. Laws, N. Y. § 177; 4 Ann. Cas. 1191.

42 McLean v. McLean, 160 N. Y. S. 949.

43 G. S. 1913, § 6783; Babcock v. Collins, 60 Minn. 73, 79, 61 N. W. 1020; 22 A. & E. Ency. of Law (2 ed.) 1129; 31

Cyc. 1143; 21 R. C. L. 810; 49 McKinney's Consol. Laws, N. Y. § 163.

44 Watkins v. Watkins, 82 N. J. Eq. 483, 89 Atl. 253.

45 Coates v. Lunt, 210 Mass. 314, 96 N. E. 685.

46 G. S. 1913, § 6755; 49 McKinney's Consol. Laws, N. Y. § 161. See 31 Cyc. 1100; 5 Probate Reports Ann. 546.

47 Meakings v. Cromwell, 5 N. Y. 136. 48 Holland v. Alcock, 108 N. Y. 312, 16 N. E. 305.

creating a charge which such grantee is authorized by the power to convey or create, but which he would have no right to convey or create unless by virtue of his power, shall be deemed a valid execution of the power, although such power is not recited or referred to therein."" When a representative executes a deed under a power in a will it is not necessary, even in the absence of statute, that the intention to execute the power should appear by express terms or recitals in the deed.50 Where the donee of a power of appointment or sale also has a life estate or other interest in the subject-matter of the power, the general rule is that a deed or other instrument which makes no reference to the power will pass only the individual interest of the donee, uniess there is something to show an intention to execute the power. The statute has no application. This rule does not apply to a deed by a life tenant with an absolute power of disposition whose title is changed into a fee by G. S. 1913, § 6735.52 Where the donee of a power to sell land has an interest in the land, a general warranty deed executed by him for a consideration equal to the value of the entire estate will be deemed an exercise of the power and a conveyance of the entire estate, though there is no reference to the power in the deed, unless a contrary intention is manifested.53

51

483. Conflict of laws-The execution of a testamentary power is governed by the law of the domicil of the testator in case of personalty, and by the lex rei sitæ in case of realty.54

49 G. S. 1913, § 6776; Babcock v. Collins, 60 Minn. 73, 81, 61 N. W. 1020; Ashton v. Great Northern Ry. Co., 78 Minn. 201, 80 N. W. 963; 22 A. & E. Ency. of Law (2 ed.) 1119; 31 Cyc. 1122; 21 R. C. L. 795: 49 McKinney's Consol. Laws, N. Y. § 175.

50 Warner v. Connecticut Mutual Life Ins. Co., 109 U. S. 357; Willier v. Cummings, 91 Neb. 571, 136 N. W. 559. See 31 Cyc. 1123; 22 A. & E. Ency. of Law (2 ed.) 1112; 21 R. C. L. 795; Ann. Cas. 1913D, 288.

151 Mutual Life Ins. Co. v. Shipman, 119 N. Y. 324, 24 N. E. 177; Weinstein v. Weber, 178 N. Y. 94, 70 N. E. 115; Pepper v. Cutler, 139 N. Y. S. 976; Lardner v. Williams, 98 Wis. 514, 74 N. W. 346; Auer v. Brown, 121 Wis. 115, 98 N.

W. 966; 22 A. & E. Ency. of Law (2 ed.) 1118; 31 Cyc. 1123; 21 R. C. L. 798; Ann. Cas. 1913D, 291.

52 Auer v. Brown, 121 Wis. 1115, 98 N. W. 966.

53 Vines v. Clarke, 97 N. Y. S. 532. See Ann. Cas. 1913D, 293.

54 In re New York Life Ins. & Trust Co., 209 N. Y. 585, 103 N. E. 315; Farnam v. Penn. Co., 87 N. J. Eq. 652, 99 Atl. 145, 101 Atl. 1053; Hollister v. Hollister, 85 Or. 316, 166 Pac. 940; Walker v. Mansfield, 221 Mass. 600, 109 N. E. 647; Russell v. Joys, 227 Mass. 263, 116 N. E. 549; Rhode Island Hospital Trust Co. v. Dunnell, 34 R. I. 394, 83 Atl. 858; Security Trust & Safe Deposit Co. v. Ward, 10 Del. Ch. 408, 93 Atl. 385; 31 Cyc. 1135.

EQUITABLE CONVERSION

484. Definition and nature-Equitable conversion is a constructive change of realty into personalty or of personalty into realty; a transformation of a fund from real to personal or from personal to real, assumed in equity to have been made in order to secure the application to the succession to or the administration of that fund of the principles which the intention of a testator or the rights of parties interested require. Thus, where a will imperatively directs real property to be sold and distributed as money, the court may treat the fund as equitably converted from the testator's death, though the executors neglect to make an actual conversion into money. The doctrine is based on the maxim that equity regards that as done which ought to have been done. 55

485. Power or order of sale in will-Where a power of sale in a will is discretionary in the grantee of the power there is no conversion until the power is actually exercised.56 As a general rule, where a testator directs the sale of a specific tract of land for the purpose of paying certain bequests from the proceeds, a court of equity will consider that the conversion of the land into personalty has taken place. The fact that the time of the sale is postponed for a definite term is not material, and the conversion will be held to have been made at the time of the testator's death.57 The doctrine of conversion in this connection rests on the intention of the testator. In order to work a conversion while the property remains unchanged in form, there must be a clear and imperative direction to convert it. The direction must be absolute and not conditional, but it need not be express. An implied direction is sufficient if the implication is necessary. When a will contains a power of sale, not mandatory in terms, but it is apparent from the general

55 Century Dict.; Langdell, Equity Jurisdiction (2 ed.) 260; Bigelow, Wills, 331; 7 A. & E. Ency. of Law (2 ed.) 464; 9 Cyc. 824; 13 C. J. 852; 6 R. C. L. 1064. See Brown v. Crookston Agr. Assn., 34 Minn. 545, 26 N. W. 907; Cuilerier v. Brunelle, 37 Minn. 71, 73, 33 N. W. 123; Ness v. Davidson, 49 Minn. 469, 52 N. W. 46; Young Men's Christian Assn. v. Horn, 120 Minn. 404, 421, 139 N. W. 805; Greenman v. McVey, 126 Minn. 21, 147 N. W. 812; Johrden v. Pond, 126 Minn. 247, 148 N. W. 112; Imperial Elevator Co. v. Bennett, 127 Minn. 256, 149 N. W. 372; In re Evans' Estate, 145 Minn. 252, 258, 177 N. W. 126.

56 Ness v. Davidson, 49 Minn. 469, 52

N. W. 46; In re Chamberlain's Estate, 257 Pa. 113, 101 Atl. 314; 7 A. & E. Ency, of Law (2 ed.) 467; 13 C. J. 868; 9 Cyc. 839; Woerner, Am. Law of Adm. (2 ed.) § 342.

57 Greenman v. McVey, 126 Minn. 21, 147 N. W. 812; Johrden v. Pond, 126 Minn. 247, 148 N. W. 112; Coyne v. Davis, 98 Neb. 763, 154 N. W. 547; In re Hawgood's Estate, 37 S. D. 565, 159 N. W. 117; Blain v. Dean, 160 Iowa 708, 142 N. W. 418; Wood v. Pehrsson, 21 N. D. 357, 130 N. W. 1010; 7 A. & E. Ency. of Law (2 ed.) 468; 9 Cyc. 838; 13 C. J. 869; 6 R. C. L. 1074; Woerner, Am. Law of Adm. (2 ed.) § 342: 20 L. R. A. (N. S.) 65; Ann. Cas. 1915D, 434.