Woody

Two beneficiaries of testamentary trusts appeal from a portion of the order settling the trustee’s final account and distributing the trust estate.

Facts: Loula Burns Doane died testate on July 14, 1952. She gave to her trustee $22,000, out of which $6,000 was to be paid to Harold Lloyd Burns at the end of 10 years, with interest at 3 per cent from the date of her death (hereinafter called “Trust A”). Her will provided: “In ease of his death before ten years or if he is still childless—without issue of his own body at the end of the ten years, he is to receive nothing.”

The will also provided that monthly payments from this trust be made to Betty Burns Woody, Leo Henry Burns, and Robert Henry Burns, and that if Betty, Leo, Robert, and Harold survived 10 years “and Harold can qualify,” the balance remaining in the trust should be divided among the four beneficiaries in designated proportions.

The testatrix created another trust of one third of the residue of her estate in favor of Harold (hereinafter called “Trust B”) “to be held in trust for him . . . for a term of ten years, after which it and the accumulated interest is to be paid to him .... But in ease said Harold Loyd…

I dissent.

The majority opinion correctly states the facts, and correctly states that the only question involved is whether “the error in the order for preliminary distribution signed on July 7, 1954” was “a clerical or a judicial error.” The opinion answers that question by holding that the error was clerical, and therefore subject to correction by a nunc pro tunc order made years after it had become final. With that conclusion I cannot agree. The error was clearly judicial.

We have recently reviewed the law on this subject in Estate of Careaga, 61 Cal.2d 471 [ 39 Cal.Rptr. 215 , 393 P.2d 415 ], There, too, the decree did not follow the words of the will. The testimony of the probate judge who had signed the original order was remarkably similar to that of the judge who had done so in the present ease. The court held that the “error” could be corrected by a nunc pro tunc order, not because it was clerical, but because the two decrees meant the same thing. If the two decrees, as here, had meant different things, the error would have been judicial. That is obvious from the opinion. In that ease the court stated (p. 474) : “ ‘The function of a nunc pro tunc order is merely to…