affecting substantial rights. The Code of Civil Procedure is decisive of the point involved.
Section 142 provides that “the court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect.” Section 145 provides: ‘The court shall, in every stage of action, disregard an error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect.” We think the case presented by this record clearly comes within the letter as well as within the spirit of the provisions of the sections of the Code above cited. The judgment must be affirmed, and it is so ordered. All concur.
A petition for a rehearing was denied on September 2, 1890.
Joseph E. Penfield, Plaintiff and Appellant, v. {{sc|Charlemagne Tower, Jr., Richard H. Lee, and Julius A. Bailey, as Trustees of the Residuary Estate of Charlemagne Tower, Deceased, Defendants and Respondents.
1. Express Trust Suspends Power to Alienate—Validity, by What Law Governed.
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.
2. Equitable Conversion; Trust in Personalty Governed by Lex Domicilii.
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
