The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1909-11-11

such a home, IL possible, and that the
services of such authorities and ohi-
GERS in and about the control and man
agement of the home shall forever be
free of charge as far as the fund there
in created is concerned. Then follows
the following:
Il desire that, in case any Of the
matters OF detail herein set forth cam
not either by reason of lack of legal
authority or because of conflict with
any law or for any cause, be carried
out herein expressed, 1t shall be un-
derstood that my directions herein are
merely recommel dations and that the
same shall not stand In the way OF the
accomplishment of the main object of
this bequest, to-wit: The amelioration
Of the condition of the poor children
in Taskog Sogn, aforesaid.
In as much as 1t is impossible for
me to, even generally direct the carry
ing out of the intent OF this bequest, it
is necessary that a great latitude be
left to my executor in the accomplish
ment Of my main object; and having
fun confidence in him, both as to his
ability and integrity, willingly leave
every matter of Judgment and discre-
ton entirely to him and, in all matters
pertaining to this bequest grant to
him the fullest powers conformable to
law, the same as IL such matter were
specifically mentioned and he there
unto empowered"
Held, l. That the direction to sell
the real property described operated to
convert the same into personality.
2. That the mere creation of the
trust therein mentioned does not, ipso
facto, suspend the power of alienation.
That such power of alienation is only
suspended by such a trust, where a
trust-term lie created, either expressly
or by implication, during the. existence
of which a sale by the trustee would
be in corltravention Of the trust Where
the trust is empowered to sell the land,
without restriction as to time, the pow
er of alienation IS not suspended, al
though the alienation In fact may be
postponed by the mol action OF the
trustee, or, in consequence Of a discre-
ton reposed in him by the creator of
the trust.
The statute of perpetuities is point
ed only to the suspension of the power
of alienation and not at all to the time
VI It's dCIudi OACIClSCs
The statute against perpetuities is
not violated by directions in the will
which may involve some delay in the
actual conversion OF. the property, arts
ing from any cause; nor does the fact
that the trustee is vesteC with a dis
erection to delay the sale Of the real
estate, not exceeding certain period
mentioned. involve an unlawful sus-
pension of the powe- of alienation.
q Charitable trusts, which is the
character of the trust in the case at
bar are highly favored, and a liberal
construction will be adopted in order
to render them effectual.
8. The provisions Of the bequesr
directing the executor to make GER
tain arrangements, IL possible, with
the authorities in Torrskog Soken re-
garding the establishment and main
tenance of such home, are constructed
as mere recommendations of the ties
tator and not as conditions precedent
to the carrying out of such bequest.
g. The provisions of the will re-
lating to such charitable requests are
not too vague, indefinite and uncertain
to- be legally enforceable. The owner
of the property may do as he pleases
with 1t, provided the disposition be
NOT to unlawful purposes and what he
may do himself he may do by agent
while living, or by his executor after
death. 1t is accordingly held that the
testator had a legal right to vest in
his executor the widest possible lati-
tude for the exercise Of his Judgment
in carrying out such bequest. The
provisions of the will, which 1t IS
contended render the same indefinite
and uncertain, are, as above stated
merely recommendations and not con
ditions precedent. Furthermore, the.
record discloses that the municipality
known as Torrskog Socken is ready
and willing to accept and carry out
the terms of the trust, and in any
event these are questions which do
not affect the validity of the bequest.
5. The fact that the will fails to
expressly designate a trustee by name
to hold such fund and to administer
the trust does not operate to defeat
the trust, when, by the language Of
the will, aided by extrinsic evidence
for the purpose OF Identification, 1t
can be determined whom the testator
intended. The fundamental maximum
applies that that Is certain, which is
capable of being made certain"
Held, Constructing the will in the
light of the foregoing rule that the
testator manifestly intended TO desig-
nate as trustees OF this fund such
officers and their successor in office as
have, under the laws of Sweden,
supervision of the poor in Torrskog
Socken. Whether such designation
operates In law as designation OF
the municipality of Torrskog Socken
as such trustee, not determined.
6. When a charitable bequest is
made to trustees in foreign country,
the court viii not assume that should
such trustees refuse to act, foreign
court will permit the trust to fail:
but viii assume that 1T will appoint a
trustee The general rule is that q
trust shall never fail for the want If
a trustee.
z Until the real property is actual
ly converted into money by the exer-
else of the power in trust conferred
upon the executor. the legal title
thereto rests in the executor as trus-
tee by necessary implication: or, in
the heir at law for want Of the desig-
nation Of a trustee in the will. If In
the latter, it is not by virtue of the
will but by operation of law on ac-
count of the failure of the testator to
designate such trustee in his will.
8. Such will confers upon the exe-
cutor power in trust to sell and con-
vert such real property into money