Estate of LOULA BURNS DOANE, Deceased. UNITED CALIFORNIA BANK, as Trustee, etc., Petitioner and Respondent, v. BETTY BURNS WOODY et al., Contestants and Appellants, 62 Cal. 2d 68

McCOMB, J. 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 [sic\ 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.” The petition for preliminary distribution filed by the executors’ attorney in June 1954 asked that Trust B terminate on July 14, 1962, and the corpus and accumulated interest “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 equal shares to Betty Burns Woody, Leo Henry Bums and Robert Henry Bums.” According to the petition, Harold was to receive the corpus and accumulated income of Trust B at the end of 10 years even though he was childless at that time. This was contrary to the terms of the will.

The petition, however, did follow the terms of the will as to Trust A, stating that, as to the $6,000 plus interest, “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 order for preliminary distribution signed on July 7, 1954, followed, at least as to Harold, the exact provisions of the executors' petition filed the preceding month. Apparently no one detected the error as to Trust B until after the trustee’s final account and petition for distribution was filed in October 1962.

Betty Burns Woody and Leo Henry Burns objected to the final account and made a motion for an order to be entered nunc pro tunc correcting the decree of July 7, 1954. At the hearing on correction of the decree for preliminary distribution, contestants’ attorney asked Judge Victor K.

Hansen, who signed the decree, “In entering that decree . . . was it your intention to direct distribution in accordance with the terms of the will ? ’ ’ He responded, ‘‘ Very definitely. ’ ’ Judge Hansen’s attention then was called to the portion of the will directing that Harold take nothing if he remained childless at the end of the 10-year period. The judge replied that he had no independent recollection of the proceedings, and stated: “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.' ’ Judge Hansen indicated that he had many such decrees to sign but that he still tried to read them before he signed them. He testified: “Obviously we put a lot of confidence in the Commissioners.

I did read them, but there is a difference between reading and studying.” When asked if the failure to include the exact provision of the will in the order for partial distribution was intentional or erroneous, Judge Hansen said: “After having gone through the will, I would not have issued the order contrary to the will.” He was then asked: “. . . does the decree as signed and entered express the decision you intended to make?” He answered, “I’d say no.” The trial court later remarked:“...! am satisfied that it was probably inadvertent.” Judge Hansen added: “I followed the petition.” In settling the trustee’s final account and distributing the estate, the court found that Harold was living but had no issue on July 14, 1962, and had had no issue prior thereto; that he was not entitled to share in any manner in the distribution of Trust A; that although the decree of preliminary distribution varied from the terms of the decedent’s will, any errors therein were judicial and could not be corrected; and it ordered that the balance in Trust B be distributed to Harold.

Question: Was the error in the order for preliminary distribution signed on July 7, 1954, a clerical or a judicial error? The error was clerical. These rules are here applicable:

(1) Independent of statute, a trial court has power to correct mistakes and to annul orders and judgments inadvertently or improvidently made. A trial court has power to vacate judgments and orders inadvertently made which are not actually the result of the exercise of judgment. It has no power, however, having once made its decision after regular submission, to set aside or amend judicial errors except under appropriate statutory proceedings. (Bastajian v. Brown, 19 Cal.2d 209, 214 [1] [120 P.2d 9].)

(2) In determining whether an error is clerical or judicial, great weight should be placed on the declaration of the judge as to his intention in signing the order. (Bastajian v. Brown, supra, at p. 215 [3].)

(3) The distinction between a clerical error and a judicial error does not depend so much on the person making it as it does on whether it was the deliberate result of judicial reasoning and determination. (Estate of Goldberg, 10 Cal.2d 709, 715-716 [4] [76 P.2d 508]; Stevens v. Superior Court, 7 Cal.2d 110, 112-114 [59 P.2d 988]; Wilson v. Wilson, 109 Cal.App.2d 673, 674 [1] [241 P.2d 281].) Applying the foregoing rules to the facts in the instant case, it is apparent that Judge Hansen’s general intent to conform to the terms of the will compels a determination that the error was clerical and not judicial. (Cf.

Estate of Careaga, 61 Cal.2d 471, 474 [4] [39 Cal.Rptr. 215, 393 P.2d 415].) Since the will clearly stated that Harold was not to take if he was childless at the end of the 10-year period, and Judge Hansen testified that he had no intention of decreeing anything contrary to the will, we believe that the error cannot reasonably be attributed to the exercise of judicial consideration or discretion and that Judge Hansen did not “interpret” the will when he signed the order for preliminary distribution which contained an error inadvertently made by the executors’ attorney.

The portions of the order from which the appeal is taken are reversed. Tobriner, J., Peek, J., Mosk, J., and Schauer, J., concurred. Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.