IN RE: BURNETT'S ESTATE.†

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District Court of Appeal, First District, Division 1, California.

IN RE: BURNETT'S ESTATE.†

Civ. 10423.

Decided: July 22, 1937

Robert B. Gaylord, of San Francisco, and W. R. Bailey, of Visalia, for appellant. Russell & Heid, of Tulare, for respondents.

On August 14, 1929, respondent G. C. Burnett filed in the superior court of Tulare county two testamentary documents, purporting to have been signed by decedent W. I. Burnett. One was dated December 24, 1915, and the other October 16, 1925. With them was filed a petition for the probate of said documents. Two days later a third testamentary document, dated May 5, 1927, and which also purported to be that of decedent, was filed, but there was no petition for its probate. On September 3, 1929, following the hearing of the petition, there was entered in the minutes of the court an order which in terms admitted to probate the two documents first mentioned as the last will and a codicil thereto of decedent, and appointed respondent as executor thereof. On October 7, 1929, appellant, who is decedent's widow and a beneficiary, served and filed a request for notice of all proceedings in the matter of the estate. On March 4, 1935, the attorneys representing the executor, without notice to appellant, applied orally to the court for an order correcting the record as to the admission to probate of the two documents. Following this application the court on April 4, 1935, entered an order, stating that on September 3, 1929, the documents dated October 16, 1925, and May 5, 1927, were at the conclusion of the hearing ordered admitted to probate, and that the document dated December 24, 1915, was not so admitted; that through inadvertence the minute order entered by the clerk of the court was erroneously made to show the admission to probate of the last mentioned document as well as the other. This order in terms corrected the minute order accordingly, and denied probate to the document of December, 1915, and admitted that of May, 1927.

The question of the effect of the order as respects the document last mentioned was presented in the Matter of the Estate of W. I. Burnett, Deceased, reported in 6 Cal.App.(2d) 116, 44 P.(2d) 435, which was an appeal from a decree of distribution made in the same estate. It was there held that no petition for the probate of that document having been field, the court was without jurisdiction to admit the same to probate, and that the order was to that extent void. Its effect upon the document of December, 1915, was not decided. The present appeal was taken from the orders mentioned.

Appellant contends that the court was without power to amend the order without notice as provided in section 473 of the Code of Civil Procedure (as amended by St. 1933, p. 1851).

The original order shown in the minutes of the court appears to have been signed by the judge; and it is the rule that a court, after it has acted judicially, cannot correct its errors without notice by a mere recital that the act was done inadvertently [Dolan v. Superior Ct., 47 Cal.App. 235, 240, 190 P. 469; Lankton v. Superior Ct., 5 Cal.(2d) 694, 55 P.(2d) 1170]; but, by virtue of its inherent power to correct its records so that they will conform to facts, it may of its own motion correct a record which through the inadvertence of its clerk fails to show the order actually made, and, if justice requires, may direct that the order be made nunc pro tunc [Crim v. Kessing, 89 Cal. 478, 26 P. 1074, 23 Am.St.Rep. 491; Kaufman v. Shain, 111 Cal. 16, 43 P. 393, 52 Am.St.Rep. 139; Lauchere v. Lambert, 210 Cal. 274, 291 P. 412].

Appellant insists, however, that the signature of the judge attached to the order mentioned in the minutes shows the same to have been something more than an order entered in the minute book, and that the same was a judicial act within the rule first stated.

Section 1704 of the Code of Civil Procedure (as amended by St. 1921, p. 105) provided that in such proceedings all orders and decrees of the court must be entered in the minute book of the court, or be signed by the judge and filed. Although the record before us is not entirely clear as to what method was intended, there is nothing to show that the memorial of the order other than that in the minutes was signed by the judge, or that, if a separate memorial was signed, that the same was filed as provided by the section. The fact of an unfiled memorial other than the entry in the minute book would not change the effect of the latter as the record of the order (Tracy v. Coffey, 153 Cal. 356, 95 P. 150; Estate of Parsons, 159 Cal. 425, 114 P. 570); and if the order shown therein––which recites that it was made in open court––failed through the clerk's error to conform to the fact, then, under the cases cited, the court, in making the correction without notice, was acting within its powers.

We think the latter situation is manifest from the record. The evidence supporting the finding of error by the clerk in entering the order was sufficient, and the orders appealed from are accordingly affirmed.

PER CURIAM.

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