IN RE: ESTATE of Maria Antonia CAREAGA

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

IN RE: ESTATE of Maria Antonia CAREAGA, etc., Deceased. Mardell Yvonne CAREAGA and Cindy Marie Knight, Petitioners and Respondents, v. Charles M. CAREAGA, James F. Careaga, Antonio F. Careaga and Eugene Francis Careaga, Individually, and as Guardians Ad Litem for certain classes, Objectors and Appellants.

Civ. 21212.

Decided: January 27, 1964

Bressani & Hansen, Gerald B. Hansen, Clarence J. Shuh, San Jose, for appellants. Ardy V. Barton, Santa Barbara, for respondents.

This is an appeal from an order amending nunc pro tunc a decree of distribution and from the ensuing Order Settling First and Final Account of Executor and Decree of Distribution, Nunc Pro Tunc. Appellants also appeal ‘from any other Minute Order and Memorandum Decision made or entered herein.’1 The instant record reveals no minute orders of any kind but does contain a Memorandum of Decision filed November 5, 1962. Section 1240 of the Probate Code specifies the orders in probate proceedings from which an appeal will lie. It is clear that such memorandum is not one of the orders so specified and is therefore not appealable. (Cf. Estate of O'Dea (1940) 15 Cal.2d 637, 638, 104 P.2d 368; Estate of Mohr (1962) 208 Cal.App.2d 799, 801, 25 Cal.Rptr. 688.) The attempted appeals from ‘any other minute order’ and from the memorandum of decision must be dismissed.

Maria Antonia Careaga died on August 28, 1943, a resident of the County of Santa Clara. She left a last will dated May 5, 1933, and a codicil thereto dated August 15, 1938, both of which documents were thereafter admitted to probate as the last will and testament of said decedent. Letters testamentary were duly issued to the American Trust Company, the estate was thereafter administered, and eventually on October 24, 1944, the probate court made and signed its Order Settling First and Final Account of Executor and Decree of Distribution, which was entered on December 20, 1944, and has long since become final.'2

At the time Maria executed her 1933 will, she was 77 years old. Seven of her ten children were then alive.3 By the terms of her will she divided the residue of her estate into ten equal shares and, so far as is here pertinent, disposed of the residue as follows: (a) to each of her seven living children an undivided one-tenth (1/10) interest for life with remainder over to their children, born and to be born, per stirpes, the children taking the share and remainder to which their respective parent received a life estate;4 (b) to specified grandchildren, being the children of her three deceased children life estates in the remaining three-tenths of the residue with remainder over to the children of such grandchildren, that is, to the great-grandchildren of the testatrix.5 Two additional paragraphs of the will emphasized the wishes and intentions of the testatrix.6

By her 1938 codicil, Maria, then 82 years old, changed the provisions of her will relating to her grandsons Albert J. Careaga and Ramon F. Careaga, sons of her deceased son Ramon. Albert retained his life estate in an undivided one-twentieth (1/20) of the residue but with remainder over to the other residuary legatees and devisees instead of to Albert's children who were thus eliminated. Ramon's undivided one-twentieth (1/20) share was declared null and void because he was dead and although the testatrix acknowledged that Ramon had died with issue, she declared it to be ‘my intention to eliminate said issue so that they will take nothing under my will, as heretofore provided.’

On October 14, 1944, the executor filed in the court below its ‘Petition for Settlement of First and Final Account and for Final Distribution as to All Legatees and Devisees Except Richard Henry Dana.’ This petition alleged (so far as is here pertinent) in language somewhat rephrased and changed from that of the will that decedent by virtue of her will and codicil had devised and bequeathed the residue of her estate as follows: (1) to her seven living children 10.5277 per cent thereof each for life with remainder over to their children by right of representation and ‘in the absence or failure of such issue’ (emphasis added) then to decedent's other residuary legatees and devisees proportionally; (2) to Richard Henry Dana and Eugene Francis Careaga, grandsons of decedent, 10.5277 per cent thereof each for life with remainder over to their children by right of representation and ‘in the absence or failure of said issue’ (emphasis added) then to decedent's other legatees and devisees proportionally; and (3) to Albert J. Careaga, grandson of decedent, 5.25 per cent thereof for life with remainder over to decedent's other legatees and devisees proportionally.7 Thus all ten shares originally provided for were disposed of, the ‘tenths' having been slightly augmented by the distribution of Ramon F. Careaga's ‘twentieth’ among all the others.

On October 24, 1944, the above petition came on for hearing and the probate court signed the decree of distribution which was not filed however until December 15, 1944. The provisions of the decree relating to the distribution of the residue repeated the corresponding allegations of the petition verbatim except that (a) the shares were expressed in fractions (2/19 and 1/19) instead of in percentages (10.5277 and 5.25) and (b) decedent's grandson Eugene Francis Careaga was listed in the same paragraph with decedent's seven living children. So far as is here pertinent, the decree ordered distribution of the residue of the estate and any after-discovered property as follows: ‘(A) To CARLOS M. CAREAGA, JUAN T. CAREAGA, JAMES F. CAREAGA, ANTONIO F. CAREAGA, RITA Y. HAWKINS, ANGELA C. SEIFERT, MARIA ELEANOR CARR and EUGENE FRANCIS CAREAGA, grandson of decedent, and son of BERNARDO F. CAREAGA, predeceased son of decedent, 2/19 each of all of the rest, residue, and remainder of decedent's estate for and during the term of their respective lives, with remainder over to their children, born or to be born, by right of representation, and in the absence or failure of such issue living at the time of the death of any of said decedent's children, then to decedent's other residuary legatees and devisees named in her said Will, and in the same proportion as said other legatees and devisees are allotted or provided for, under decedent's will, but subject to the same conditions, life estates, and remainders to which said respective bequests and devises are subject, * * *’ (Emphasis added.)

In the following two paragraphs the decree distributed to Richard Henry Dana his 2/19 interest8 for life and to Albert J. Careaga his 1/19 interest for life.9

Juan Careaga, son of decedent and life tenant, and one Fenelon Filoucheau, brother of decedent and a life income beneficiary of a certain trust not here involved, died subsequent to the decree of distribution, as a result of which the above shares of 2/19ths and 1/19th of the residue were augmented to 2/17ths and 1/17th respectively.

The present controversy arose out of an action in partition commenced in 1961 in the Superior Court of Santa Barbara County with reference to certain real property covered by the 1944 decree of distribution. It is not necessary to detail these events except to state that, in concluding the judicial sale ordered and confirmed by such court, it became necessary to satisfy certain requirements of a title insurance company as a condition to the issuance of a policy of title insurance showing clear and marketable title in the purchaser. Paramount among these was an order of said court that the remainders distributed by the 1944 decree of distribution wherein life estates were created in certain persons with remainders over to their children, were vestible only in the children of the life tenants and not in their grandchildren or later issue. An order to such an effect made binding on all of the heirs of Maria Careaga was entered by the Santa Barbara court and an appeal taken therefrom.

Thereafter, on July 25, 1962, Mardell Careaga, granddaughter of Juan Careaga and great-granddaughter of the testatrix, one of the respondents herein10 filed in the court below (i. e., the Santa Clara court) a ‘Motion to Correct Decree of Distribution Nunc Pro Tunc Under CCP 473.'11 Mardell was later joined in this motion by Cindy Marie Knight, the other respondent herein.12 The aforesaid motion sought ‘an order correcting nunc pro tunc the decree of distribution on page 5, line 8 to read as follows: ‘and in the absence of failure of such issue living at the time of the death of any of said decedent's children’ That the sole change to be made to the decree of distribution is the deletion of the word ‘such’ which is not present in the Will.' It was made ‘on the ground that a clerical error has been made in said decree of distribution.'13 It was, and is, the position of Mardell that, as a result of the alleged error in the decree, on the death of the life tenant Juan, she was deprived of the remainder to which she was entitled by right of representation of her deceased father Adelbert. It was, and is, the position of Cindy that unless the error is corrected, upon the death of the life tenant Angela (still living), she will be deprived of her portion of the remainder to which she will be entitled by right of representation of her mother Evangeline.

On August 23, 1962, the motion came on for hearing before the Honorable John D. Foley, the same judge who had signed the original decree of distribution in 1944.14 Judge Foley testified that he had no independent recollection whatsoever of any of the circumstances in ergard to the petition for final distribution or the decree of distribution; that he had no recollection of the contents of the petition; that he had no recollection of any specific order or decree that he intended to have entered at the time of the decree of distribution; and that he had no recollection of anything which would lead him to believe that the decree of distribution which he did sign was not the order which he intended to sign. The motion was granted.15

On November 26, 1962, Judge Foley signed and filed an order stating that said motion for an order nunc pro tunc modifying and correcting the decree of distribution was granted and that the clerk was instructed to enter nunc pro tunc, as of October 24, 1944, a decree of distribution nunc pro tunc in the form and content as the decree attached to the order. The said order also stated: ‘Said order is made on the ground that the DECREE OF DISTRIBUTION heretofore signed and entered on the 24th day of October 1944 was the result of a clerical mistake and inadvertence and that said DECREE OF DISTRIBUTION signed and entered was not in fact the decision actually intended to be rendered and that said decision set forth in the DECREE OF DISTRIBUTION DATED October 24, 1944 was not the decision arrived at, but that it was the intent of the Court to make an order in form and content all as set forth in the ORDER SETTLING FIRST AND FINAL ACCOUNT OF EXECUTOR AND DECREE OF DISTRIBUTION NUNC PRO TUNC attached hereto.’

On the same day, Judge Foley signed and filed an ‘Order Settling First and Final Account of Executor and Decree of Distribution, Nunc Pro Tunc.’ The only difference between this new document and the original decree of distribution is the deletion of the word ‘such’ which appears in the original decree in three places before the word ‘issue,’ two of such places being in the distribution provisions of the decree as we have indicated by italics, supra. This appeal followed.16

Appellants contend here: (1) that there was no error in the 1944 decree; (2) that if there was any error in said decree, such error was judicial and not clerical and (3) the amended decree is judicially erroneous. We proceed to consider appellant's second contention.

In Estate of Eckstrom (1960) 54 Cal.2d 540, 544, 7 Cal.Rptr. 124, 126, 354 P.2d 652, 654, it is said: ‘A court can always correct a clerical, as distinguished from a judicial error which appears on the face of a decree by a nunc pro tunc order. Estate of Goldberg, 10 Cal.2d 709, 714, 76 P.2d 508; Code Civ.Proc. § 473. It cannot, however, change an order which has become final even though made in error, if in fact the order made was that intended to be made.’ (See also Estate of Harris (1962) 200 Cal.App.2d 578, 585, 19 Cal.Rptr. 510.) ‘The function of a nunc pro tunc order is merely to correct the record of the judgment and not to alter the judgment actually rendered—not to make an order now for then, but to enter now for then an order previously made. The question presented to the court on a hearing of a motion for a nunc pro tunc order is: What order was in fact made at the time by the trial judge?’ (Smith v. Smith (1952) 115 Cal.App.2d 92, 99–100, 251 P.2d 720, 724; footnotes omitted.)

Writing for this court in Morgan v. State Bd. of Equalization (1949) 89 Cal.App.2d 674, 682, 201 P.2d 859, 864, Justice Bray, after reviewing representative California cases, stated: ‘From these cases, it appears that the rules to be followed in determining whether an error is clerical or judicial so that the court may have the power to correct it by amendment, are as follows: (1) No serious problem is involved where the correction is to include a matter inadvertently omitted, such as the grounds for granting a new trial, or where the error is plainly clerical. (2) The serious problem arises where the amendment is substantially different from the original order or substantially changes the rights of the parties. In such cases, if the court is purporting to correct a clerical error, it should say so, or there should be something in the record to show it. (3) Where there is conflicting evidence as to whether the error was clerical, the reviewing court will probably accept the conclusion of the trial court. Bastajian v. Brown, supra, 19 Cal.2d 209, 120 P.2d 9. If the record shows clearly that there was no clerical error, the recital by the trial court will not be conclusive. Estate of D[B]urnett, supra, 11 Cal.2d 259, 79 P.2d 89.’ See also Nathanson v. Murphy (1957) 147 Cal.App.2d 462, 467–470, 305 P.2d 710; Nacht v. Nacht (1959) 167 Cal.App.2d 254, 262–263, 334 P.2d 275. As Witkin puts it: ‘The test is simply whether the challenged judgment was made or entered inadvertently (clerical error) or advertently (judicial error).’ (3 Witkin, Cal.Procedure, p. 1894.)

A decree of distribution ‘when it becomes final, is conclusive as to the rights of heirs, devisees and legatees.’ (Prob.Code, § 1021.) Once final, such a decree, even though erroneous, is, like any other erroneous judgment, as conclusive as a decree cree which is devoid of error. (Estate of Eckstrom, supra, 54 Cal.2d 540, 545, 7 Cal.Rptr. 124, 354 P.2d 652; Estate of Loring (1946) 29 Cal.2d 423, 432, 175 P.2d 524.)

Eckstrom, supra, further states: ‘While a clerical error is no longer to be limited to only those made by a clerk [citations], nevertheless, clerical errors do not include those made by the court because of its failure to correctly interpret the law or apply the facts. [Citations.] It is only when the form of the judgment fails to coincide with the substance thereof, as intended at the time of the rendition of the judgment, that it can be reached by a corrective nunc pro tunc order.’ (54 Cal.2d at p. 545, 7 Cal.Rptr. at p. 127, 354 P.2d at p. 655.)

In the estate before us, the testatrix by paragraph THIRD (a) of her will (see footnote 4, ante) gave to each of her seven living children life estates in an undivided one-tenth (1/10) of the residue with remainder over to their children per stirpes, provided however that if any life tenant (i.e., child of the testatrix) died without issue, his or her share would be distributed among the other devisees and legatees named in the will. The petition for distribution filed October 14, 1944, alleged that the testatrix had given such life estates to her children, with remainders over to their children, provided that in the absence or failure of such issue living at the time of the death of any of said decedent's children, then to decedent's other residuary legatees and devisees named in her will. The decree of distribution repeated this same language. It is apparent that the insertion of the word ‘such’ before the word ‘issue’ in both the petition for and decree of distribution had the effect of altering the language of the will. The insertion of ‘such’ limits and reduces the category of ‘issue.’ Whereas under the terms of the will, the other residuary legatees and devisees will take only if the life tenant dies without issue, that is, without any lineal descendants in an indefinite line, under the terms of the decree, they will take if the life tenant has died without such issue, that is, merely without children. To state it another way: if a life tenant had children, predeceasing him or her, but died leaving other issue, under the terms of the will, such issue would take, whereas under the terms of the decree, they would not, the remainders over being limited to children and not extending to grandchildren or later issue of the life tenant.

The effect of the nunc pro tunc order was to give respondents Mardell and Cindy shares in the testatrix' estate which they would not receive. It is therefore an inescapable conclusion that the decree of distribution nunc pro tunc is substantially different from the original decree and substantially changed the rights of the parties having and claiming interests in the estate. (Morgan v. State Bd. of Equalization, supra, 89 Cal.App.2d 674, 682, 201 P.2d 859.)

We therefore reach the crucial questions in the case: Was the original decree of distribution, although not in accordance with the terms of the will and therefore erroneous, in fact the decree that the probate judge intended to make? Or did the probate judge at the time he signed the original decree, fail to make a decree which accurately expressed the decision he intended to render? As we have already pointed out, Judge Foley stated on the hearing of the motion to correct the decree that he had no independent recollection of any of the circumstances in regard to either the petition or the decree and no ercollection of any order or decree he intended to have entered at the time.17 The instant situation therefore resembles somewhat that found in Estate of Harris, supra, 200 Cal.App.2d 578, 590–591, 19 Cal.Rptr. 510, 517 where in reversing an order amending nunc pro tunc a decree of final distribution as well as the decree of final distribution nunc pro tunc the court observed: ‘There is nothing in a minute order, or on the face of the decree, or in any phonographic report of any of the proceedings, which indicates there was an existing intention, at the time of making the decree, of rendering a decision wherein the interpretation of the will or the distribution of the estate was different from the decree as signed.’

The foregoing language from the Estate of Harris, supra, is pertinent here. This is not a case where the trial court has resolved on conflicting evidence the question whether or not the error sought to be corrected was clerical. (See Morgan v. State Bd. of Equalization, supra, 89 Cal.App.2d 674, 682, 201 P.2d 859.) Paraphrasing Harris, supra, there is nothing in the instant record indicating an intention on the part of the court to make an order different from that contained in the decree which it signed. Indeed, the only indication we have been able to find in the record that the order made was not the order intended, is the declaration to that effect by Judge Foley in the order amending nunc pro tunc the decree of distribution, quoted by us supra. As Justice Peters wrote for this court in Nacht v. Nacht, supra, 167 Cal.App.2d 254, 265, 334 P.2d 275, 282: ‘Can the judge, by merely declaring that a prior ruling was entered inadvertently, set that ruling aside and enter a different ruling? Will the appellate court, based on such a declaration alone conclusively presume that the change in mind occurred prior to the entry of the first order? We think not. The sanctity of judicial pronouncements cannot be made to depend on such insecure foundations. Once made, a judicial pronouncement cannot be set aside except as provided by law. Certainly it cannot be set aside by the judge who pronounced it simply changing his mind on the law or the facts. If a prior judgment or order is to be set aside there must be something more in the record to support the order than the mere declaration of the trial judge that the prior order was entered inadvertently. The court had no legal power to correct a judicial error in this fashion. The judge had no legal power to change his mind on the proper interpertation of the evidence after he had made a judicial ruling on that question. In our opinion, before a formal ruling can be set aside and a contrary ruling made on the ground of inadvertence, there must appear in the record something to support the finding of inadvertence other than the declaration of the court to this effect. The record here discloses no such showing.’ Nor does the instant record.

Our consideration of the trial court's memorandum of decision (see footnote 15, ante) has not altered our above views. We observe that the court's determination that the original decree was the result of clerical mistake and inadvertence appears to rest on two bases: (1) A construction of the will had not been requested in the petition for distribution. Therefore the language of the decree could not be viewed as a construction of the will and the inclusion therein of the word ‘such’ was of necessity a clerical error. (2) It must be presumed that it was the intent of the petition and of the court in its decree to follow the language of the will. We must disagree with this rationale.

Contrary to the court's first reason, the will of Maria Antonia Careaga did receive a construction upon the distribution of her estate and ‘upon the entry of that decree, the provisions of her will were merged in a judgment which determined the rights of all who might claim any portion of her estate by virtue of the provisions of the will.’ (Jewell v. Pierce (1898) 120 Cal. 79, 82, 52 P. 132, 133.) The decree was necessarily a judicial construction of the will and, not having been appealed from, is by virtue of statute conclusive as to the rights of all heirs, devisees and legatees claiming any portion of the estate. (Prob.Code, § 1021; Jewell v. Pierce, supra; Williams v. Marx (1899) 124 Cal. 22, 24, 56 P. 603.) A decree of distribution which has become final is a conclusive determination of the validity, meaning and effect of a will, the trusts created therein and the rights of all parties thereunder, even though the decree be erroneous and contrary to the terms of the will. (Estate of Scrimger (1922) 188 Cal. 158, 164–165, 206 P. 65; Estate of Loring, supra, 29 Cal.2d 423, 427, 432, 175 P.2d 524, and cases there collected; Pacific Mutual Life Ins. Co. v. McConnell (1955) 44 Cal.2d 715, 726, 285 P.2d 636, cert. denied 350 U.S. 984, 76 S.Ct. 472, 100 L.Ed. 852, rehearing denied 351 U.S. 943, 76 S.Ct. 832, 833, 100 L.Ed. 1469; Estate of Eckstrom, supra, 54 Cal.2d 540, 544–545, 7 Cal.Rptr. 124, 354 P.2d 652.)

As to the second reason given in the memorandum, to presume an intent of the probate court, when ordering distribution, to follow the language of the will is in reality to presume an intent on the court's part to make the order which it ought to have made, even though it did not make it. The court in Eckstrom disapproved and rejected such a concept of clerical misprision which ‘would impress upon all judicial errors the clerical label if the ‘judgment as entered is not the sentence which the law ought to have pronounced’ without regard, apparently, for the intention of the court in rendering the judgment. If this theory were carried to its logical and ultimate conclusion it would give to a motion made pursuant to section 473 of the Code of Civil Procedure the efficacy of a motion for new trial or an appeal long after the time for making such a motion or filing an appeal had expired. If not carried to that extreme it would, nevertheless, permit the court in each instance to determine that a particular judicial error, although resulting in an order or judgment the court intended to make, might be presumed to be a clerical misprision in order that the court could do what should have been done on motion for a new trial or an appeal. [Citation.] * * * Neither of these results lie within the purview of section 473 nor of any inherent power of the court to correct its own error. [Citation.]' (54 Cal.2d at pp. 546–547, 7 Cal.Rptr. at p. 128, 354 P.2d at p. 656.)

Respondents argue that the original decree incorporates the provisions of the will and that therefore where the provisions of the decree contradict those of the will, the latter will govern. In such a situation, it is urged, the errors appearing on the face of the decree are only clerical errors. It is a well recognized exception to the general rule on the finality and conclusiveness of a decree of distribution that where the provisions of a will or agreement have been incorporated in a decree by express terms or by apt reference, resort may be had to such will or agreement in interpreting the decree. (Horton v. Winbigler (1917) 175 Cal. 149, 158–159, 165 P. 423; In re Ewer (1918) 177 Cal. 660, 664, 171 P. 683; Estate of Scrimger, supra, 188 Cal. 158, 164–165, 206 P. 65; Estate of Den (1935) 3 Cal.2d 638, 640, 45 P.2d 963; Estate of Lockhart (1937) 21 Cal.App.2d 574, 578–579, 69 P.2d 1001.) Respondents rely heavily on Horton and Ewer.

To conclude whether the will has been incorporated in the decree within the meaning of the above exception, it must be determined whether the language of incorporation or ‘apt reference’ employed in the decree is such as to constitute the will a portion of the distributive terms of the decree and to make it a part of the decree as effectually as though set forth in it. (Horton v. Winbigler, supra; Estate of Lockhart, supra.)

In Hornton, supra, the petition for distribution, after setting forth the terms of the will and of an agreement between the heirs as to the method of distribution, asked for distribution under the will and agreement. The decree recited “that in pursuance of, and according to the last will of said deceased, the agreements of the heirs and legatees, and deeds and conveyances on file herein, the said property is distributed as follows, to wit.” (175 Cal. p. 158, 165 P. p. 427) followed by the distributive clause in favor of the heirs. Holding that incorporation of both the will and agreement had been effectuated, the court stated that the trial court ‘was admitting these instruments, which were in effect part of the decree of distribution becase referred to therin and declared to be the basis of the decree itself, not to modify it or change it in any particular, but for the purpose of construing it in its entirety and determining just what was meant by all its distributive provisions.’ (175 Cal. p. 159, 165 P. p. 428.)

In Ewer, supra, the decree recited “[t]hat in accordance with the provisions of the last will and testament of said deceased the said residue now remaining in the hands of said executor should be distributed as follows: * * *” (177 Cal. p. 661, 171 P. p. 683) followed by the designation of the shares to be distributed. The decree then provided for the distribution of such shares in the same language. Holding that the trial court could look to the will to determine the nature of a trust on which one of the shares was distributed, the appellate court declared: ‘[W]hile the will cannot be used to impeach the decree, it can be used to explain it where the decree taken alone is uncertain, vague, or ambiguous. * * * The direction to pay the $25,000 to Chas. E. Naylor, as trustee for Eliza B. Ewer, gives no information as to the nature of the trust upon which the money was to be held. * * * The finding that the residue remaining in the hands of the executor should be distributed ‘in accordance with the provisions of the last will and testament of said deceased,’ together with the other references in the decree, sufficiently incorporated the provisions of the will into the decree for the purposes of reference to aid the decree and ascertain the nature of the trust.' (Pp. 662–663, 171 P. p. 684.)

In Lockhart, supra, the decree distributed “in pursuance of and according to the provisions of the last will of said decedent” to a named trustee upon certain trusts. While the decree was not uncertain or ambiguous in respect to the share of each beneficiary and followed the will as far as it went, the decree did entirely omit a provision of the will expressing the testator's intention as to the ultimate amounts of the beneficiaries' shares. Holding that the admission of the will in evidence over objection was proper, this court said: ‘The court may, by express terms or by apt reference thereto, incorporate the will in the decree so as to constitute it a portion of its distributive terms and make it a part of the decree as effectually as though set forth in it. When necessity arises thereafter to construe the decree, it is the duty of the court to look to the will to ascertain the terms of distribution. Horton v. Winbigler, 175 Cal. 149, 165 P. 423. If the will, by apt reference, is made part of the decree, it supplies matters which it contains but the decree omits. In re Estate of Blake, 157 Cal. 448, 108 P. 287. While the will cannot be used to impeach the decree, it can be used to explain it where the decree taken alone is uncertain, vague, and ambiguous. This rule has been applied both where the decree referred to the will (In re Ewer's Will, 177 Cal. 660, 171 P. 683; Fraser v. Carman-Ryles (Cal.Sup.) [8 Cal.(2d) 143] 64 P.(2d) 397), and where it did not. McCloud v. Hewlett, 135 Cal. 361, 67 Pac. 333. * * * Phrases identically worded to the above-talicized portion of the present decree have been held to incorporate the will into the decree. Horton v. Winbigler, supra; In re Ewer's Will, supra.’ (21 Cal.App.2d pp. 578–579, 69 P.2d p. 1003.)

In the instant case we find no language in the original decree of distribution which may be deemed effective to incorporate the provisions of the will. It is clear that there are no express words of incorporation. Nor do we find any language of ‘apt reference’ which is similar to that found in the cases reviewed above and has been held sufficient to effectuate incorporation. Nothing in the decree suggests that its distributive provisions were to be qualified by, or read in the light of, another document extrinsic to the decree. As we have pointed out, the language of the decree closely parallels the language of the petition. Notably the decree recites: ‘IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that all the allegations of the Petition for Settlement of Account and for Final Distribution are true.’ We conclude that the original decree did not incorporate the will within the scope of the exception to the rule and under the authorities set forth above.

Respondents further contend that the original decree is ambiguous on its face and that therefore ‘the will can be used to change the decree.’ It is also a well recognized exception to the general rule on the finality and conclusiveness of a decree that where the decree itself is uncertain or ambiguous, the will may be resorted to, not to impeach or contradict the decree, but to clarify it and resolve such uncertainty or ambiguity. (Fraser v. Carman-Ryles (1937) 8 Cal.2d 143, 146, 64 P.2d 397; Lloyd v. First Nat. T. & S. Bank (1951) 101 Cal.App.2d 579, 582, 225 P.2d 962; Estate of Freeman (1956) 146 Cal.App.2d 49, 57, 303 P.2d 609; Estate of Doyle (1962) 202 Cal.App.2d 434, 444, 21 Cal.Rptr. 123; see quotation from Estate of lockhart, supra, 21 Cal.App.2d 574, 578–579, 69 P.2d 1001.) Contrary to respondents' claim, the decree in the instant case is not in itself ambiguous. The use of the word ‘such’ before the word ‘issue’ in the provision under discussion plainly limits issue to the grandchildren of the testatrix. It is only when the will is considered with the decree that a conflict arises. However, the will cannot be resorted to in order to create an ambiguity. (Estate of Norris (1947) 78 Cal.App.2d 152, 160, 177 P.2d 299.) Even if the provisions of the will could be resorted to, since it is apparent that such provisions are inconsistent with those of the decree, the latter must prevail. (Estate of Norris, supra.) As this court said in Norris: ‘We think that it is clear that, if the distributive portions of the decree are free from ambiguity, in order to create an ambiguity, resort may not be had to the provisions of the will, even though incorporated in the recitals of the decree. If, however, the distributive portions of the decree are ambiguous, then resort may be had to the will in interpreting that ambiguity, but even in that event if it be found that the distributive provisions of the decree are inconsistent with the will and cannot be reconciled, then the distributive portions of the decree must prevail.’ (P. 160, 177 P.2d p. 304.) See also Estate of Wallace (1950) 98 Cal.App.2d 285, 289, 219 P.2d 910, where the court after following Norris pointed out that ‘[t]his is so because a plain and unambiguous direction for distribution in the decree is necessarily a judicial construction and enforcement of the provision of the will thereby construed.’ (P. 289, 219 P. p. 913.)

Respondents rely heavily on the Estate of Goldberg (1938) 10 Cal.2d 709, 76 P.2d 508, where the testator in his will directed that certain property be divided among his four children (naming them) but the decree of distribution omitted the name of one child as distributee. A copy of the will had been attached to the petition for distribution which prayed that the residue of the estate “be distributed to those entitled thereto.” However, the petition did not indicate the manner in which the estate should be distributed. The minute order on distribution stated: “Decree of distribution granted in accordance with terms of the will, and the Court directs that the proper decree be prepared and filed herein, and when filed, the same to be entered in the records of this Court on the date of filing.” (P. 711, 76 P.2d p. 509.) Thirty-five years later, the court made a nunc pro tunc order amending the decree to conform to the will by inserting the name of the omitted child. This was upheld on appeal as the proper correction of a clerical error appearing on the face of the record. It is clear that Goldberg is distinguishable from the case before us. The factors in Goldberg pointed out above were deemed to establish an intent on the part of the court to promulgate a decree of distribution embodying the terms of the will as appearing in the attachment to the petition for distribution. These factors are missing in the instant case.

Finally respondents' argue that the original decree was an order made out of court without notice and therefore could be vacated pursuant to section 937 of the Code of Civil Procedure.18 The gist of this argument is that the petition for distribution was noticed for hearing for October 24, 1944, but that the decree, although bearing the typewritten date of October 24, 1944, was more probably signed on or about December 15, 1944, the date it was filed. This argument is utterly devoid of merit. The record shows that the petition was properly noticed19 and that the court therefore acquired jurisdiction to order distribution. (See Estate of Bell (1943) 58 Cal.App.2d 333, 336, 136 P.2d 804.) These proceedings on distribution were not ex parte but pursuant to notice. There is simply no basis for respondents' claim that the decree of distribution made and signed as a result of these proceedings, as the decree itself plainly recites, became in some way an ex parte order.

We conclude that the trial court by its orders here appealed from sought to correct a judicial error and not a mere clerical error. It was without power to do this. In view of our conclusions herein which require reversal of the orders in question we need not pass upon appellants' other contentions made on this appeal.

The attempted appeals from any minute order and from the memorandum of decision are, and each of them is, dismissed. The order amending nunc pro tunc the decree of final distribution and the Order Settling First and Final Account of Executor and Decree of Distribution, Nunc Pro Tunc, are, and each of them is, reversed. Appellants shall recover costs on appeal.

FOOTNOTES

1.  The order amending nunc pro tunc the decree, merely entitled ‘Order,’ was signed November 26, 1962, and filed November 27, 1962. The ‘Order Settling First and Final Account of Executor and Decree of Distribution, Nunc Pro Tunc’ signed ‘THIS 24th day of October 1944, nunc pro tunc, 26 day of November 1962’ was filed November 27, 1962, and entered November 30, 1962.

2.  Neither this order and decree nor decedent's will and codicil, discussed infra, were included in the original record brought before us. While the parties in their briefs appear to be in agreement as to language of said documents, in the interest of completeness and on our own motion we have ordered the record on appeal herein augmented to include the county clerk's file in Probate Proceedings No. 27456.

3.  Living were: Sons Carlos, Juan, James and Antonio and daughters Rita Hawkins, Angela Seifert and Maria Carr. Then deceased were: Sons Bernardo and Ramon and daughter Evangelina Dana.

4.  The will provides in pertinent part: ‘(a) To CARLOS M. CAREAGA, JUAN T. CAREAGA, JAMES F. CAREAGA, ANTONIO F. CAREAGA, RITA Y. HAWKINS, ANGELA C. SEIFERT, and MARIA ELEANOR CARR an undivided one-tenth (1/10) interest each for and during the term of their natural lives with the remainder over to their children, born or to be born, per stirpes; their children taking the share and remainder to which their parent received a life estate. In the event of the death of any of my said children without issue, his or her share shall be distributed among my other legatees and devisees named in this will in the same proportion they are allotted under this will; but in the event of the death of any of my children with issue prior to my death, the share of the one dying shall go to his or her children; in the event of the death of any of my said children, without issue, prior to my death, then it is my wish and I so will that the share or portion bequeathed and devised under this paragraph to my said children shall be distributed among my other legatees and devisees named in this will, but subject to the same restrictions, conditions, life estates, and remainders to which their respective bequests and devises are subject.’

5.  This portion of the will provides: ‘(b) To RICHARD HENRY DANA, thirteen (13) years of age, son of my deceased daughter, EVANGELINA Y. DANA, and GUGENE FRANCIS CAREAGA, fifteen (15) years of age, son of BERNARDO F. CAREAGA, my deceased son, an undivided one-tenth (1/10) interest each, and to RAMON F. CAREAGA, and ALBERT J. CAREAGA, sons of RAMON A. CAREAGA, my deceased son, an undivided one-twentieth (1/20) interest each, TO HAVE AND TO HOLD for and during the term of their natural lives with the remainder over to their children, born or to be born, per stirpes; but in the event of the death of any one of said grandchildren, with issue, his child or children to take the share or remainder to which their parent received a life estate. In the event of the death of any of said grandchildren without issue, the remainder shall be distributed among my other legatees and devisees named in this will in the same proportion they are allotted under this will; in the event of the death of any of my said grandchildren prior to my death, without issue, his share shall be distributed among my other legatees and devisees named in this will in the same proportion they are allotted under this will; however, it is my wish and I so will that in the event of the death of either RAMON F. CAREAGA or ALBERT J. CAREAGA, the sons of my deceased son, RAMON A. CAREAGA, without issue, his undivided one-twentieth (1/20) interest in the residue of my entire estate shall go to the survivor for and during his natural life with the remainder over to his children, born or to be born, per stirpes; the children taking the share and remainder to which my deceased grandchild received a life estate; should either RAMON F. CAREAGA or ALBERT J. CAREAGA, the sons of my deceased son, RAMON A. CAREAGA, die prior to my death, without issue, it is my wish and I so will that the survivor shall receive the share or portion bequeathed and devised under this paragraph to his said brother, but subject to the same restrictions, conditions, life estates, and remainders to which his respective bequest and devise is subject.’

6.  The Fifth and the Sixth (in relevant part) paragraphs provided: ‘FIFTH: In the event that any devise or bequest under this will shall lapse, it is my wish and I so will that the same be distributed among my other legatees and devisees then living in accordance with the terms of this will. ‘SIXTH: * * * That there may be no misunderstanding as to my intentions as to the plan or scheme of distribution set out in Paragraph ‘THIRD’ of this will, I add the following as an explanation as to my intentions: It is my desire and I so will that by said plan, if, for instance, any person who is to receive an undivided one-tenth (1/10) interest of my estate should die, without issue, then his one-tenth (1/10) share shall be divided equally among the surviving legatees and devisees but subject to the same restrictions, conditions, life estates, and remainders to which their respective bequests and devises are subject.'

7.  See footnote 3, ante. The seven living children enumerated in the petition are as stated therein. Richard Henry Dana is the son of Evangelina Dana and Eugene Francis Careaga the son of Bernardo Careaga, deceased daughter and son respectively of decedent. Albert Careaga is the sole surviving son of Ramon A. Careaga, deceased son of decedent, Ramon F. Careaga having died and been eliminated by the terms of the 1938 codicil.

8.  In pertinent part the decree provides: ‘(B) To RICHARD HENRY DANA, grandson of decedent, and son of Evangelina Y. Dana, predeceased daughter of decedent, 2/19 of all the rest, residue and remainder of decedent's estate for and during the term of his life, with remainder over to his children, born or to be born, by right of representation, and in the absence or failure of such issue living at the time of the death of said Richard Henry Dana, then to decedent's other residuary legatees and devisees named in her Will, and in the same proportion as said other legatees and devisees are allotted or provided for, under decedent's Will, * * *’ (Emphasis added.)

9.  In pertinent part the decree provides: ‘(C) To ALBERT J. CAREAGA, grandson of decedent and son of RAMON A. CAREAGA, pre-deceased son of decedent, 1/19 of all of the rest, residue, and remainder of decedent's estate for and during his natural life, and upon his death to the other residuary legatees and devisees of decedent named in her Will in the same proportions they are allotted under said Will by said decedent, * * *’

10.  Mardell's father, Adelbert Careaga, had predeceased the testatrix in 1939, at which time Mardell was en ventre sa mere, being born 20 days after Adelbert's death. Although Mardell's lineage was questioned by appellants on the hearing of her motion, this issue has apparently been conceded on this appeal.

11.  Section 473 of Code Civ.Proc. provides in part: ‘The court may, upon motion of the injred party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, * * *.’

12.  Although the record does not reveal with great clarity Cindy's status, the briefs filed herein inform us that she is a daughter of Evangeline Teresa Seifert Knight and the granddaughter of Angela Seifert, daughter of the testatrix. Thus Cindy is also a great-granddaughter of decedent. Evangeline Knight survived the testatrix but is now deceased. Angela Seifert is still living. Cindy's mother, Evangeline, was one of three children of Angela. Angela is a life tenant and Evangeline a one-third remainderman of Angela's share. Cindy claims she will be entitled to her mother's one-third share.

13.  The declaration of Mr. Barton, respondents' counsel, filed in support of the motion states, inter alia, that ‘[t]he object of this petition is to correct a clerical error in the decree of distribution resulting in the transfer of language from the Will into said decree.’ Such declaration then alleges that in the third paragraph of the will after providing for life estates with remainders over to the children of the life tenants, the will specified that ‘[i]n the event of the death of any of my said children without issue, his or her share shall be distributed among my other legatees and devisees named in this will; * * *’ whereas the corresponding portion of the decree of distribution provided that ‘in the absence or failure of such issue * * * living at the time of the death of said decedent's children, * * *’

14.  Unless otherwise indicated, we will for convenience hereafter refer to the order and decree signed October 24, 1944, as the ‘decree of distribution.’

15.  In his Memorandum of Decision filed November 5, 1962, Judge Foley states: ‘The petition for final distribution purports to set forth the terms of the will of the deceased and includes a prayer that the estate be distributed according to the provisions of the will. ‘The decree of distribution also purports to set forth the terms of the will in language practically identical with the language of the petition. ‘In both the petition and the decree the word ‘such’ issue appears but it does not appear in the will. ‘An interpretation and construction of the terms of the will was not requested in said petition. It seems apparent that both the petition for distribution and the decree of distribution included the word ‘such’ as the result of a clerical error in the preparation of said documents. ‘It must be presumed that it was the intent of the petition for distribution and of the Court's action thereon in the decree to follow the language of the will.’

16.  Appellants are Charles M. Careaga, James F. Careaga, Antonio F. Careaga and Eugene Francis Careaga, individually and in their respective capacities as guardians ad litem of certain classes.

17.  Judge Foley testified: ‘Q. * * * Do you have any specific recollection of any specific order or decree that you intended to have entered at the time of the Decree of Distribution? A. I do not. Q. Do you have any recollection of Mr. Bressani, the attorney for the executor, presenting to you a decree of distribution in this matter, your Honor? A. I do not, Mr. Hansen. Q. Is there anything in your recollection, sir, that would lead you to believe that the Decree of Distribution which you did sign was not the order which you intended to sign? A. Will you read that question back, please? (The question was read by the Reporter.) THE WITNESS: No, it is not.’

18.  Section 937 of Code Civ.Proc. provides: ‘An order made out of Court, without notice to the adverse party, may be vacated or modified, without notice, by the Judge who made it; or may be vacated or modified on notice, in the manner in which other motions are made.’

19.  The county clerk's file shows a Notice and Affidavit of Posting.

SULLIVAN, Justice.

BRAY, P. J., and MOLINARI, J., concur.