other at the intermediate part of the period of postponement. To treat the period of gestation, however, as an adjunct to the lives, is not, perhaps, quite correct. It seems more proper to say that the rule admits of the absolute ownership being suspended for a life or lives in being, and twenty-one years afterwards, and that for the purposes of the rule a child en ventre sa mere is considered as a life in being." It is only in cases of gestation that the period of twenty-one years can be extended. In Cadell v. Palmer, 1 Clark & F. 372, in the house of lords, it was declared to be the unanimous opinion of the judges that there cannot be added to the period of twenty-one years an absolute period equal to the ordinary or longest period of gestation irrespective of the existence of gestation, but that the time can be enlarged only in those cases in which gestation exists. This is the settled law. But the period of twenty-one years is an absolute period, and the lives during which the absolute period of disposition is suspended are not necessarily the lives of the persons who are interested in the property. Said the court in McArthur v. Scott, 113 U. S. 340, 5 Sup. Ct. Rep. 652: "The rule of the common law by which an estate devised must at all events vest within a life or lives in being, and twenty-one years afterwards, has reference to time and not to persons. Even the life or lives in being have no reference to the persons who are to take, for the testator is allowed to select as the measure of time the lives of any persons now in existence; and the twenty-one years afterwards are not regulated by the birth or the coming of age of any person, for they begin not with a birth, but with a death, and are twenty-one years in gross, without regard to the life or the coming of age of any person soever," Every attempt to tie up the absolute ownership of property except as permitted by these rules is without effect in law.

The provisions of the will in question do not fall without the scope of these rules, and are therefore valid at common law, the law which it is admitted obtains in Pennsylvania, the domicile of the testator at the time of his death. Is the trust so far as the real estate in this state is concerned to be governed by the laws of this state or of Pennsylvania? Under the statute of this state the trust is void. By § 2717 of the Compiled Laws it is

provided that "the absolute power of alienation cannot be suspended by any limitation or condition whatever for a longer period than during the continuance of the lives of persons in being at the creation of the limitation or condition, except in the single case mentioned in § 2745." This case is not material to the question before the court. Section 2718 declares that "every future interest is void in its creation which by any possibility may suspend the absolute power of alienation for a longer period than is prescribed in this chapter. Such power of alienation is suspended when there are no persons in being by whom an absolute interest in possession can be conveyed." Are there, during the existence of this trust for twenty-one years beyond lives in being at the time of its creation, persons in being by whom a absolute interest in possession can be conveyed? Clearly not. The beneficiaries take no interest or estate in the land. They may merely enforce the performance of the trust in equity. The whole estate is vested in the trustees. § 2804, Comp. Laws. There is no title in any one save the trustees that can be conveyed, and the trustees can make no conveyance in contravention of the trust. Every such conveyance is void. § 2810, id. The trust is indestructible during its continuance, even with the consent of all the trustees and all of the beneficiaries. Douglas v. Cruger, 80 N. Y. 15. Our statutes were taken from that state. In construing the statutes of New York with reference to this point, the court in that case said: "The trustee having no power to convey the land, his conveyance, otherwise absolutely void, could not be rendered valid by an order of the court obtained upon the joint petition of himself and Mrs. Cruger. The supreme court has not the power to destroy a valid trust. The purpose of the statute was to make these trust-estates and trust-interests indestructible and absolutely inalienable during the existence of the trust, and if they could be rendered alienable by the order of the court the whole scheme of the statute would be greatly impaired, and its purpose thwarted." See, also, Cruger v. Jones, 18 Barb. 467; Lent v. Howard, 89 N. Y. 169. It has been repeatedly held under the same statutes in New York that a trust suspends the absolute power of alienation of real estate and the absolute ownership of personal property.

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Radley v. Kuhn, 97 N. Y. 26; Everitt v. Everitt, 29 N. Y. 71; Smith v. Edwards, 88 N. Y. 102; Shipman v. Rollins, 98 N. Y. 311; Knox v. Jones, 47 N. Y. 390; De Wolf v. Lawson, (Wis.) 21 N. W. Rep. 615; Simpson v. Cook, 24 Minn. 180-184. It is not merely future estates which are void. Every estate, present or future, which suspends the absolute power of alienation, is void. Hawley v. James, 16 Wend. 61-163; Coster v. Lorillard, 14 Wend. 265-305.

But it is insisted that all the real estate owned by the testator at the time of his death was, by the will, equitably converted into personalty; that, under § 3364 of the Compiled Laws, it is therefore to be deemed personalty from the death of the testator, and that a will of personal property is to be governed as to the validity of the trust it creates, by the law of the testator's domicile, under § 3397 of the Compiled Laws; and that by the laws of that domicile (Pennsylvania) the trust is valid. Section 3364 declares that "when a will directs the conversion of real property into money, such property and all its proceeds must be deemed personal property from the time of the testator's death." Section 3397 provides that the validity and interpretation of a will relating to personal property, is to be governed by the laws of the testator's domicile. These statutes are merely declaratory of long-established rules. It is conceded that the will, if it is a will of real property-is to be governed by the laws of this state, as to the validity of the trust, so far as that trust affects land within the state. Section 3397 expressly declares this rule. If then the will equitably converts into personalty all the testator's real estate within this jurisdiction, it is to be governed by the laws of Pennsylvania. If it is so governed, the trust is valid. The same rule as to perpetuities applies to personal property, as to real estate, in the absence of a statute. The absolute ownership of personal property may, at common law, be suspended for the same period as real estate. Waldo v. Cummings, 45 Ill. 421; 1 Jarm. Wills, 519. Jarman says: "To the test of the rule settled by Cadell v. Palmer, every gift of real or personal estate, by will or otherwise, must be brought." In Waldo v. Cummings the court, after referring to authorities, say: "These authorities leave no doubt that chat

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

statement of the doctrine; but it will be found that beneath the superficial disagreement there is harmony. It has been said that some courts hold that, although the testator's design that there should be a sale is not expressed, and although a sale is not necessary, yet if, on a view of all of the provisions of the will, it is apparent that a sale was intended, this is sufficient to constitute an equitable conversion. This statement embodies no modification of the doctrine. It merely declares what indeed is elementary-that the intention of the testator controls. When once it is ascertained from the will that it was his intention that his real estate should be sold, that intention is of as binding force upon the trustees and the courts as though expressed in the form of a direction. The doctrine of equitable conversion does not concern itself ultimately with the language in which the purpose that there should be a sale is couched. Is it the testator's will that there should be a conversion? This is the final and decisive inquiry. Forms of expression are important only as they indicate such a design. A positive direction is satisfactory evidence that a sale is willed. Absolute necessity for a sale to carry into effect the provisions of the testament establishes the purpose of the testator with equal clearness.

But there are other tests than these. The very foundation of the doctrine demonstrates that, however the intention is disclosed, it operates as an equitable conversion; for that must be done which is seen to be the testator's will, however expressed. As it must be done, equity makes present the future, and regards the deed to be performed as an accomplished fact. In no case has the rule been expressed with more felicity and clearness than in Scholle v. Scholle, 113 N. Y. 261-270, 21 N. E. Rep. 84: "To justify such a conversion there must be a positive direction to convert, which, though not expressed, may be implied; but, in the latter case, only when the design and purpose of the testator is unequivocal, and the implication so strong as to leave no substantial doubt. Hobson v. Hale, 95 N. Y. 598. Where, however, only a power of sale is given, without explicit and imperative direction for its exercise, and the intention of the testator in the disposition of his estate can be carried out, although no conversion is adjudged, the land will pass as such, and not be