Opinion
Calvin L. Helgoe and John K. Ford, Los Angeles, for contestants and appellants.
Stephens, Jones, La Fever & Smith, Los Angeles, for petitioners and respondents.
SHINN, Presiding Justice.
This is an appeal from portions of an order settling the eighth and final account of trustee and for distribution of the estate in trust.
By decree of partial districution in the estate of Loula Burns Doane, deceased, rendered July 7, 1954, certain sums were distributed to a trustee for the establishment of three testamentary trusts which would terminate July 14, 1962. The petition for final distribution purported to accord with the terms of the trusts as defined by the decree of partial distribution. Betty Burns Woody and Leo Henry Burns filed objections to the petition and they also made a motion for an order to be entered nunc pro tunc correcting the decree of partial distribution. The ground of the motion was that the decree directed that one-third of the residue of decedent's estate (to be referred to as Trust B) be paid over to Harold Lloyd Burns, if living upon termination of the trust, whereas the amount should have been directed to be paid to appellants and Robert Henry Burns in equal shares upon another condition stated in the will, which was erroneously omitted from the decree. That the decree failed to accord with the terms of the will is not open to question; the error appeared on the face of the record. The question was whether the mistake was a clerical or a judicial error. The court received evidence offered by appellants and ruled that the error was a judicial one and not subject to correction. The determinative question on the appeal is whether appellants failed to prove that the misstatement in the former decree of the terms of Trust B was the result of clerical error. We hold with the trial court that it was a judicial error and that the former decree must stand as written.
Pursuant to the terms of the will, $22,000 was placed in Trust A, out of which the trustee was to pay Harold Lloyd Burns (Trust A. Harold L. Burns) $6,000, plus interest, at the expiration of 10 years, subject to the provision 'should said Harold Lloyd Burns die prior to July 14, 1962, or if he is then without issue of his body, he shall receive nothing.' The will also provided for monthly payments from the trust to Betty Burns Woody, Leo Henry Burns and Robert Henry Burns and that if Betty, Leo, Robert and Harold survived ten years 'and Harold can qualify' the balance remaining in the trust should be divided one-third to Harold, one-third to Robert, one-sixth to Betty and one-sixth to Leo. The petition for partial distribution correctly recited the provisions of the will with respect to the $22,000 trust and the $6,000 legacy, and the decree of partial distribution gave effect to those provisions.
The corpus of the third trust (Trust B) was $21,000, being one-third of the residue October 3, 1962, the trustee filed its final account and petition for distribution. In purporting to state the terms of the will and the decree of partial distribution with respect to the $6,000 bequest, the balance remaining in Trust A and the bequest of one-third of the residue (Trust B), it was alleged in the petition that Harold was entitled to have all three sums distributed to him. The petition was in error with respect to the $6,000 and the balance of Trust A. It omitted the provision of the former decree that Harold was not to receive the $6,000 or a share of the balance of Trust A if he was childless July 14, 1962. With respect to the $21,000 bequest, the petition followed the decree of partial distribution which, as we have said, omitted the provision of the will that Harold was to take nothing from that trust if he was childless when the trust terminated.
In settling the final account and ordering distribution, the court found that Harold was childless July 14, 1962, by its decree denied him the right to receive the $6,000 or a share of the balance in Trust A, but distributed to him the balance remaining in Trust B. This disposition resulted from the holding that the decree of partial distribution could not be corrected.
The decree of partial distribution was signed by Judge Victor Hansen, now retired. He was called as a witness for appellants and testified as set out in the footnote. The decree presented to Judge Hansen for his signature bore the inscription 'O.K. V.E.D.' This indicated approval of the form of the decree by a probate commissioner. In substance, Judge Hansen's testimony was that although he could not recall the circumstances of the incident he no doubt believed when he signed the decree that the terms of the will with respect to the bequest of one-third of the residuary estate were correctly set forth in the petition for partial distribution and in the decree which was submitted to him.
'MR. FORD: I am talking about the will, sir. Q Calling your attention to the early part of the will where one-third of the residue of the estate was devised to California Trust Company in trust for Harold Lloyd Burns, and particularly to the provision which reads, 'But in case said Harold Lloyd Burns dies before the end of the ten years or is still childless, without issue of his body, his one-third is to be divided equally between Betty Burns Woody, Leo Henry Burns and Robert Henry Burns'; was it your intention to incorporate that provision into the decree? A Well, I would be less than honest if I say I haven't any independent recollection at all of the proceeding here. I have since the time read the will and have also read the order. And I notice the order had been approved by Commissioner Donatelli. And all I can say is that I am sure I had no intention of decreeing anything contrary to the will, but I obviously have no independent recollection. THE COURT: Do you recall reviewing the petition? THE WITNESS: I do not recall reviewing the petition. I assume that is the reason why the order was made as it was and approved by Commissioner Donatelli and was signed by me. Q BY MR. FORD: In the course of your work as a Superior Court Judge in Probate, at that time did you have many decrees coming before you for signature every day? THE COURT: I am satisfied times haven't changed. THE WITNESS: Yes, I think you can take judicial notice of the fact. Q BY MR. FORD: Was it your practice to try to read those decrees before you signed them? A I tried to. Obviously we put a lot of confidence in the Commissioners. I did read them, but there is a difference between reading and studying. Q The decree provides in relation to the particular trust that we are considering, that 'All principal and accumulated income on hand in this trust on July 14, 1962, less expenses of administration of this trust, shall be distributed to Harold Lloyd Burns if then living. Should said Harold Lloyd Burns die prior to July 14, 1962, leaving no issue of his body, the said trustee shall distribute the principal and accumulated income in this trust then on hand, less expenses of administration, in equal shares to Betty Burns Woody, Leo Henry Burns and Robert Henry Burns.' My question, sir, is this: Was the failure to include that provision from the will--'But in case said Harold Lloyd Burns dies before the end of the ten years or is still childless, without issue of his body, his one-third is to be divided equally between Betty Burns Woody, Leo Henry Burns and Robert Henry Burns,'--intentional on your part, or in your opinion was there an error? A Hindsight is better than foresight. After having gone through the will, I would not have issued the order contrary to the will. Q In your opinion, then, does the decree as signed and entered express the decision you intended to make? A I'd say no.'
The rules which guide in determining whether an error in court proceedings was a clerical or judicial error have been stated times without number. (See discussion of the rules in Estate of Goldberg, 10 Cal.2d 709, 76 P.2d 508 and Estate of Careaga, 224 A.C.A. 432, 36 Cal.Rptr. 564.) If the judge has in mind and intends to render his decision of a matter under consideration in a certain way, but fails to do so, and through inadvertence renders a different decision, the error is a clerical one and subject to correction; upon the other hand, if he does not have in mind an intent to do something different from what he, in fact, does, the error is judicial and not subject to correction. If Judge Hansen had had in mind the terms of the will and had intended to incorporate in the decree the condition that Harold would not take a share of the residuary estate if he was childless at the time of the termination of the trust and if, through inadvertence, he failed to incorporate that condition in the decree the mistake would have been a clerical error. But, as appears to have been the case, if he was unaware that the will contained the condition in question and that the petition for distribution misstated the terms of the will by omitting the condition and assumed that the decree which was submitted for his signature correctly stated the terms of the will, the mistake was a judicial error. Of course, he had no intention to disregard or depart from the terms of the will. In the absence of any testimony by him it would have been presumed that he intended to order distribution so as to give full effect to the will. But this abstract purpose was not an intention to do any specific thing; and the thing that is omitted to be done in cases of clerical error must be a concrete and definite act spelled out in the mind of the judge as the decision he intends to make. There was no minute entry, no note or memorandum and no other evidence to prove that Judge Hansen intended to sign a decree that would differ in any respect from the one which he signed. His inability to recall whether he had a specific intention to do something other than what he, in fact, did, and the absence of any other evidence that he had such in intention left the court no alternative to its ruling that the error was a judicial one.
The facts of the present case do not differ in any material respect from those in Careaga, supra, in which the inability of the judge who signed the order in probate, which was sought to be corrected, to recall the circumstances in which the order was made, was held to foreclose correction of the decree. In our case there was the same failure to prove commission of a clerical error.
All the cases relied upon by appellants are distinguishable. In such cases as Bastajian v. Brown, 19 Cal.2d 209, 120 P.2d 9; Martin v. Ray,
Miller v. Wood,No doubt there was a clerical error in the drafting of the petition, which misled the commissioner, whose approval misled the judge, but there was no clerical error on the part of the court.
The order is affirmed.
FORD and FILES, JJ., concur.