Opinion
Rehearing Denied Feb. 23, 1960.
Hearing Granted March 23, 1960.
Opinion vacated 7 Cal.Rptr. 124.
Larwill & Wolfe, Los Angeles, for appellants.
Cosgrove, Cramer, Diether & Rindge, J. D. Barnum, Jr., Los Angeles, for respondent.
FOX, Presiding Justice.
Appeal from an 'order correcting order for distribution nunc pro tunc.'
Thomas F. Eckstrom died testate on August 11, 1952. Appellants, Marie E. Eckstrom and Thomas F. Eckstrom, Jr., are his surviving children. Respondent bank was the executor of his will and also the trustee of a living trust, of which certain charitable organizations are the beneficiaries.
The 'order for distribution' which was corrected by the order nunc pro tunc from which this appeal is taken, provided, in the portions thereof relevant to this controversy, that: 'All inheritance taxes and other real and personal property taxes due and payable by said estate have been paid'; that '* * * the Federal Estate Taxes paid the United States of America shall be pro-rated among the legatees mentioned in the Last Will and Testament of said deceased, as follows: Marie Eckstrom, $46,995.28; Thomas Eckstrom Jr., $46,995.28; Citizens National Trust & Savings Bank of Los Angeles in its capacity as Trustee of that certain Trust No. P. T. 8661, $59,327.86'; that 'petitioner [bank] is hereby instructed to pay to itself in its capacity as Trustee of that certain Trust No. P. T. 8661 the sum of $60,445.35 out of the balance of cash on hand as a refund of the unused portion of the money advanced [$120,000] to this estate by said trust for payment of estate and inheritance taxes'; and, that 'the balance of cash and the property hereinabove described, and all other property belonging to said estate, whether described herein or not, be and the same is hereby distributed as follows: 1. An undivided one third (1/3) thereof to Marie Eckstrom, less deduction for Federal Estate Taxes in the sum of $46,995.28, and less deduction for California Inheritance Taxes in the sum of $9,075.61; 2. An undivided one third (1/3) thereof to Thomas Eckstrom, Jr., less deduction for Federal Estate Taxes in the sum of $46,995.28 and less deduction for California Inheritance Taxes in the sum of $8,571.10; 3. An undivided one third (1/3) thereof to the Citizens National Trust & Savings Bank of Los Angeles in its capacity as trustee of that certain trust known as Trust No. 8661 executed by the above named deceased * * * less deduction for Federal Estate Taxes in the sum of $59,327.86.' (Emphasis added.) No appeal was taken from this order and it has long since become final.
The italicized phrase above was ordered stricken by the order nunc pro tunc from which this appeal is taken. Said order nunc pro tunc states the reason for the correction as follows: 'that it appears from the First and Final Account and Report of Special Administrator and Executor and from the Petition for Distribution filed herein December 15, 1955 (hereinafter referred to as 'Account, Report and Petition') that said Trustee, out of funds belonging to said private trust, advanced for and on behalf of said Executor the sum of $120,000 on account of Federal Estate Taxes due and owing by said Executor,
Prior to the entry of the Order for Distribution, certain other proceedings between the parties were compromised by an order approving a stipulated agreement between them. Said compromise agreement provided in part: That 'As further consideration for the undertaking of Marie E. Hart (now known by her maiden name of Marie Elizabeth Eckstrom) and Thomas F. Eckstrom, Jr., as herein provided, and in compromise and settlement of all controversies between them and the Bank as Executor and Trustee, the Bank as trustee will pay to Marie E. Hart the sum of $25,000.00 and to Thomas F. Eckstrom, Jr., a like sum of $25,000.00.' (Emphasis added.)
Appellants Marie and Thomas Eckstrom contend that the order correcting the order for distribution should be reversed for the following reasons: That (1) there is no clerical error in the record, (2) the decree for distribution was consented to by the parties and was drafted by attorneys for the respondent, and (3) the order corrected was a final order and the order nunc pro tunc is a direct challenge to the doctrine of finality of judgments.
In support of the order nunc pro tunc, respondents urge (1) that the court exercised an inherent power to correct a clerical error apparent on the face of the record, and (2) that no agreement existed between the parties whereby the trustee agreed to contribute to the distributable probate estate a sum of money ($59,327.86) equal to its proportionate share of the Federal Estate Tax, which it had previously paid.
The evidence presented to the court below (Judge Vickers) shows quite clearly that the order for distribution was not drafted in accordance with the agreement of the parties, notwithstanding the affidavit of Charles W. Wolfe, attorney for appellants, which contains the following statement: '* * * the attorneys for the Distributees and the Executor agreed * * * that said Trustee was only to be repaid the sum of $60,445.35 and the balance of said money it had loaned to said Executor was not to be repaid to it or credited to its account, and that the unpaid amount was to be a contribution The applicable rule in California is well stated in the leading case of In re Estate of Goldberg, 10 Cal.2d 709, 76 P.2d 508, 511, wherein the Supreme Court affirmed an order nunc pro tunc correcting a decree of distribution. The court first considered the question of whether, by virtue of the fact that the decree of distribution unintentionally omitted the name of one of the beneficiaries named in the will, the trial court had 'authority and power' to make an order nunc pro tunc modifying the decree and correcting the error. The court stated: 'In that regard * * * notwithstanding the general rule that even though judicial error therein be manifest, after a judgment or decree has become final, its provisions no longer properly may be subjected to change or modification, nevertheless when on the face of the record it appears that a clerical error has been committed and carried into the judgment or decree, the court has the authority and the power to correct such error.' The court then turned its attention to a discussion of the term 'clerical error' as applied in nunc pro tunc proceedings. 'Ordinarily, although originally and in its literal significance, a 'clerical error' is one that has been made by a clerk or some subordinate agent, latterly the meaning has been broadened and extended so that it now may include an error that may have been made by the judge or by the Wilder v. Bush,
Bessemer Irr. D. Co. v. West Pueblo D. & R. Co., Smith v. Smith,There is one important factual difference between the Goldberg case and the instant matter. In the Goldberg case, the trial judge had made a minute order to the effect that the decree of distribution should follow the provisions of the will. Therefore, the court had only to compare the provisions of the will with the decree to discover the clerical error. In the present case, no minute order is made a part of the record, but presumably, the order for distribution was to follow the Account, Report and Petition submitted by the parties and approved by Judge Triplett. This latter document contained the same error that was subsequently carried into the order for distribution. But under these circumstances, Judge Vickers could rely on the language of 14 California Jurisprudence, pages 995, 996, as quoted with approval in the Goldberg case to the effect that 'the judgment as entered is not the sentence which the law ought to have pronounced upon the facts as established by the record' and was justified in acting on the 'presumption that the error [was] a clerical misprision rather than a judicial blunder.' [10 Cal.2d 709, 76 P.2d 512.] Appellants assign this as error, citing In re Estate of Loring, 29 Cal.2d 423, 175 P.2d 524, and In re Estate of Buckhantz, 159 Cal.App.2d 635, 324 P.2d 317. They contend that these two cases establish the rule that a decree of distribution is conclusive on all parties thereto even though erroneous and even though the record itself shows that it is erroneous. That is undoubtedly the law. However, neither of these cases deals with the point involved in the present case, i. e., whether a clerical error was committed by the court so as to Appellants, however, urge that though there may have been error, which they do not concede, that error was judicial and not clerical. They argue that the order of Judge Triplett must be presumed to be a correct reflection of his intent and that only he could disprove, by his testimony, the effect of this presumption, citing Livesay v. Diebert, 3 Cal.App. 2d 140, 146, 39 P.2d 466. However, in the Livesay case, the facts are such that only the judge making the original order could know whether or not the order was incorrect and not in conformity with his intentions in the premises. Such is not the factual situation in the present case, nor was any such presumption indulged by the Supreme Court in the Goldberg case.
Appellants also contend that 'For an error to be clerical and for the order in which it is contained not to be conclusive, it must be shown that the order entered was not the order intended by the court, and that the said court had ordered another and different order to be entered than the one actually made and entered.' From this premise they argue that the court must have intended the very order actually entered, since that order was approved by both parties and was actually drafted by the respondents and was marked 'OK' by the commissioner and signed by the judge. Therefore, their ultimate conclusion is that the error, if any, was a judicial error, not a clerical error, and that any possible clerical error was committed by the scrivener, not by the court. But this argument begs the crucial issue, i. e., whether or not the obvious clerical error committed by the executor and its attorney was incorporated into the decree of Judge Triplett under such circumstances as to make that error his error. In this regard, In re Estate of Soboslay, 4 Cal.2d 177, 47 P.2d 714, is apposite. In that case, the trial court, on its own motion, set aside a decree of distribution, and filed an amended decree. It appeared that the final account and petition of the executors showed a cash balance available for distribution which had not been decreased by the deduction of two claims which had been allowed and paid, thus rendering the final account and petition incorrect and inaccurate. The decree of distribution followed the terms of final account and petition and thus perpetuated the error. No objections were made to the decree when entered and it was not until more than two months had elapsed that the court discovered the mistake that had been made. The Supreme Court upheld the action of the trial court in setting aside the decree and filing an amended decree. The court held that '* * * the amendment was not a judicial act; the court merely corrected an error of omission in the account and decree of distribution, by reference to the record in the case.' 4 Cal. at page 179, 47 P.2d at page 715. It could similarly be said of the instant case, that Judge Vickers merely corrected an error of inclusion in the account and decree of distribution. In both cases, the original error was made by the executors and their attorneys and not by the court. Obviously, the reliance of the court in both cases on the accuracy and diligence of the scriveners was misplaced, for in each instance, the error was carried over into the decree. And it should also be pointed out, that in the Soboslay case as in the instant case, all the parties agreed as to the terms of the decree, yet the Supreme Court had no difficulty in holding that 'the amendment was not a judicial act.' The analogy between the Soboslay case and the instant case is clear. The Soboslay case shows that an error by an executor and its attorney may lead to a similar error on the part of the court. Nacht v. Nacht,
Counsel of record were not attorneys for the executor when the documents herein involved were prepared and filed.
It is clear that the inclusion of the provision for a double deduction of the trust's share of estate taxes was not made in the exercise of judicial consideration. It is true that Judge Triplett signed the decree for distribution but the inclusion of the offending portion of that decree was obviously inadvertent and not intentional. In George v. Bekins Van & Storage Co., 83 Cal.App.2d 478, 189 P.2d 301, 303, it is said: 'The term 'clerical error' covers all errors, mistakes, or omissions which are not the result of the exercise of the judicial function. If an error, mistake, or omission is the result of inadvertence, but for which a different judgment would have been rendered, the error is clerical and the judgment may be corrected to correspond with what it would have been but for the inadvertence.' See also Bastajian v. Brown, 19 Cal.2d 209, 120 P.2d 9. Inasmuch as there was no evidence in the record which would support a conclusion that the stricken provision was contemplated or agreed upon by the parties, and since the opposite conclusion is the only one which could reasonably be reached upon the record presented to Judge Triplett, the inclusion of that provision could only have resulted from inattention or inadvertence on his part. Judge Vickers so decided the issue and there appears no doubt that he was correct. Bastajian v. Brown, supra; Makovsky v. Makovsky, 158 Cal.App.2d 738, 323 P.2d 562.
Appellants also rely on the case of In re Estate of Lingg, 71 Cal.App.2d 403, 162 P.2d 707, for the proposition that the respondent bank had agreed to the terms of the decree of distribution and was therefore bound by them; i. e., estopped to challenge their correctness. In the Lingg case, a widow who was also the executrix, consented to the very distribution which in fact was made. Moreover, she was the only person who could have objected to the bequest, which was a charitable bequest in excess of the one third limitation. In the present case, there was no evidence whatsoever that the bank, either in its capacity as executor or as trustee, in fact consented to the deduction of the amount of the tax from the trust's share of the estate when such tax previously had been paid. Rather, the record discloses on its face a serious mistake on the part of the executor and its attorney which, when incorporated into the decree, led to this result. The difference between consent and inadvertence is clear, and this case represents an obvious inadvertence rather than any affirmative consent.
Appellants' contention that Judge Vickers' order violates the principle of the finality of judgments need not be further considered in view of the foregoing discussion and authorities. The principle is wholly inapplicable where the error corrected was a clerical rather than a judicial error.
Since the record presented to Judge Vickers disclosed on its face an obvious error which could not reasonably have been the result of judicial consideration, he was justified in concluding that the error was a clerical misprision rather than a judicial blunder, and was entitled to correct it.
The order is affirmed.
HERNDON, J., concurs.
ASHBURN, J., dissents.