163 A. 566 | Vt. | 1933
The power of the probate court to revise and alter its decrees is not of a character warranting its exercise in the instant case, where the rights of others have intervened. In re Hayes'Estate,
A record may be corrected to speak the truth, but that power extends only to the ministerial function of recording a judicial act, that is, to make the record reflect the judicial act, and not to a judicial function already fully and finally exercised, nor can a court amend its record to remedy the effect of judicial non-action. Mosseaux v. Brigham,
The court's memory lends no legal support to the findings.Clover v. Modern Woodmen,
The exercise of revisory power by the probate court, by adding to the allowance orders under G.L. 3282 a condition that during the currency of the orders no interest should accrue to the widow's benefit or in favor of her trustee on the $60,000 trust legacy, nor on the $15,000 direct legacy, changed said orders into a form having no warrant in law, for she was entitled as a matter of law to interest on the direct legacy from one year after the death of her husband, In re Woodward's Estate,
The widow's allowance is a pure gratuity by force of law. Sipes
v. Mann, 39 Pa. St. 414, 417; Stauffer's Estate,
The widow's allowance is presumed to be in addition to, and not in substitution for, a provision for that purpose in the will, and voluntary advancements by the administrator to the widow on account of her distributive share do not deprive her of her right to a support allowance. Houghtaling v. Stockbridge (Mich.), 99 N.W. 759, 760; Allen v. Allen,
Courts, including probate courts, have power to amend their records to make them speak the truth. French v. Windsor, 24 Vt. at p. 407; Hotchkiss v. Ladd's Estate, 62 Vt. at pp. 211, 212;Mosseaux v. Brigham,
The power of a court to correct its record is inherent, and not dependent on statutory grant, the court being exclusive judge of the necessity and propriety of an amendment of its record and of the sufficiency of the proof offered in support thereof, and power to amend may be exercised by the court of its own motion. 15 C.J. 975-978; Christisen v. Bartlett,
The probate court had jurisdiction originally to make the widow's allowance as expressed in its corrected order, the only *70
limitation, here pertinent, on its power and discretion being that the allowance must be "reasonable." G.L. 3282; Sawyer v.Sawyer, 28 Vt. at p. 249; Richardson v. Merrill,
The record shows no exceptions that Supreme Court can consider, taken by appellants to admission or exclusion of evidence, since transcript is merely "referred to" for purpose of ascertaining what exceptions appellants took to admission and exclusion of evidence, but is not made part of bill of exceptions for that purpose. Francis v. London, etc., Co., 100 Vt. at p. 429; O'Boyle
v. Parker-Young Co.,
The court did not err in correcting its order of May 1, 1925, although such order was not specified in the petition, as technical rules of pleading do not govern proceedings in probate court in this State, and correction of order referred to was the same res, of the same nature, as the relief specified in the prayer and contemplated by petition, and there was a prayer for general relief, which aids and supplements the special prayer, so as to authorize all relief consistent with general frame of bill, though variant from that sought by the special prayer. EurekaMarble Co. v. Windsor Mfg. Co.,
Mrs. Prouty made application to the probate court for the district of Orleans, wherein the settlement of the estate is pending, for an allowance from the estate for her support. The application was granted, an allowance was decreed, and from time to time since, other decrees have been made granting allowances *71 for her support. These orders were absolute in form, and, as recorded, do not in any way affect the amount of interest which would accrue on the bequests above referred to.
The executor of the estate, Edgar J. Prouty, has now brought this petition to the probate court aforesaid, therein alleging that two of the allowances above referred to, one dated December 6, 1918, and the other dated June 15, 1920, did not correctly express the decisions actually made by the probate court on the applications under which they were made, and praying that said decrees be corrected so as to express the truth, by inserting therein a provision that the allowances were to be in lieu of the interest on the trust fund. This petition is dated October 31, 1931, and contains no reference in its body or prayer regarding interest on the $15,000 legacy. A hearing was had before Judge Smith of the probate court aforesaid, who heard evidence, found the facts, and thereon rendered a decree granting the prayer of the petition and directing that the order dated June 15, 1920, and another dated May 1, 1925, be corrected as above.
The case comes here on direct appeal and a bill of exceptions duly allowed by the probate court.
We may as well say at this point that the attempt to correct the order last above referred to was wholly unwarranted. It appeared that the probate court, at different times, made four allowances to the widow under G.L. 3282. As we have already seen, only the one of December 6, 1918, and the one dated June 15, 1920, were made the basis of this petition. The evidence taken at the hearing below was limited to these two orders. The order of May 1, 1925, was wholly dehors the record, and appears to have been considered by the court in making the decree through some misunderstanding. Being wholly outside the pleadings and proof, it was error to order its correction in this proceeding. CutlerCo. v. Barber,
The order of December 6, 1918, is already out of the case, for, while it was covered by the petition and proofs, there is no finding concerning it, and the decree below did not cover it. So what follows applies only to the order of June 15, 1920.
The petitioner claims that the appellants have no available exceptions to the admission and exclusion of evidence or to the action of the court in overruling their motion to dismiss, because the transcript, though referred to, is not made a part of the record, except for a particular purpose that does not cover the exceptions above referred to.
We agree with the petitioner that unless the transcript is, in some proper way, made a part of the record, it is not before us.O'Boyle v. Parker-Young Co.,
That a probate court has the inherent power to correct its decrees by a nunc pro tunc order so that it will accord with the decision rendered and speak the truth is too firmly established by our cases to be disputed. In re Hayes' Estate,
The question whether a record shall be corrected is one addressed to the discretion of the court who made it. St. Pierre
v. Beauregard,
This power of amendment can never be used to rectify judicial error or omission. Under the guise of correction, a court is powerless to add to its judgment a term not originally included in it, though it might have been or even should have been so included. A court cannot in this way cure its own lapses. Note toNational Council, etc. v. Silver, 10 A.L.R. 523, 554. Whatever was actually adjudged may be embodied in the entry by a nunc protunc order. But that is as far as the corrective power of the court goes. The points adjudged are the vital things; the entry is merely the official evidence of them. The things adjudicated may not be amended; the record, *74
if faulty, may be. Bean v. Ayers,
At common law, even clerical mistakes or misprisions could be corrected only where the record furnished the means of correction. 15 R.C.L.; note 10 A.L.R. 628 et seq. Some courts adhere to this rule. Others deviate from it far enough to admit for consideration notes and memoranda, not themselves a part of the record. Still others throw open the door to the consideration of any legitimate evidence though it be wholly outside the record. See note last cited, and note Ann. Cas. 1913E 349. Many cases indicate that the recollection of the presiding judge, alone, does not afford a sufficient basis for correcting the record. While the practice in this State is not very clearly defined, we think the liberal rule last stated is indicated by our cases, and that any legitimate evidence may be admitted to prove the facts, which evidence may include the recollection of the court who made the judgment order. In Little v. Cook, 1 Aikens, 363, 365, 15 A.D. 698, it was said regarding an erroneous entry that the court from its own knowledge or satisfactory affidavits ought to ascertain the facts and order the entry corrected. In Mosseaux v. Brigham,
The court found, in effect, that the order of June 15, 1920, as recorded in the probate office did not correctly recite the order that was actually made by the court, and that in order to correspond to the order actually made it should be so corrected as to provide that the sum allowed to the widow should be in lieu of the interest which the law would give her on the sums given *75
to and set apart for her by the will. By an order dated January 19, 1932, the original order was so corrected. We have paraphrased the language of the finding somewhat, but it reasonably amounts to what we have written. The probate court, of course, had no power to stop the running of interest on the sums referred to by a direct order to that effect. It could, however, tender to Mrs. Prouty a choice between the interest and an allowance under the statute. In fixing upon a sum which in the circumstances would be reasonable, the court could properly take into consideration the provisions made for her in the will, In reDrasdo,
This brings us to a consideration of the question of the sufficiency of the evidence to support the findings that the original order did not correctly reflect the judgment, and how it should be corrected.
The record shows that these findings were predicated wholly on the evidence taken at the hearing, and not at all on the recollection of Judge Smith; for, though he reports that his recollection coincides with the findings, he expressly says that "from the evidence at the hearing" he makes those findings. The evidence at the hearing consisted only of (1) the testimony of Edgar J. Prouty; (2) the letter written by Judge Smith to Hon. John G. Sargent, counsel for Mrs. Prouty, dated November 26, *76 1919; (3) Gen. Sargent's reply thereto, dated December 7, 1919; (4) Gen. Sargent's letter to Geo L. Hunt, counsel for the appellants, dated December 11, 1931. All these letters were by agreement treated as evidence.
All that Mr. Prouty testified to was that he understood, from what was said at the time the order was made, that the allowance to the widow was to be in lieu of interest on the trust fund. He said nothing about interest on the $15,000. It did not appear from his testimony or otherwise what was in fact said or who in fact said it. All there was in the letter to Gen. Sargent that has any tendency to show that Judge Smith was intending to make the widow's allowance conditional is the following: "I want to give the widow the benefit of the doubt and I feel that she is entitled to be considered before the other legatees but I do not feel that she should be considered before the creditors. I think that if the estate is perfectly solvent that the widow ought to at least have six per cent. interest on the amount she would be decreed provided the estate was settled within the year and as I figure it that would give her $375 a month and as I figure it that would make about $13,000 a year that the executor would have to pay in interest and the widow's allowance and that looks large to me. To sum up what I am trying to get at I feel that it is my duty to be sure that the creditors of this estate are to be taken care of first and if there is no question about that then I think Mrs. Prouty should have an allowance if this estate is going to be dragged along four or five years and that the allowance be at least the legal rate of interest on what she should receive." This letter was written about seven months before the order of June 15, 1920 — the only one left in the case — was made. There is nothing in Gen. Sargent's reply that throws any light whatever on the question at issue. But in his letter to Mr. Hunt, he expressly denies that it was ever suggested in his hearing that the sums allowed to Mrs. Prouty were to have any effect or bearing on what would be her rights under the will.
It is enough here to say that the foregoing evidence was wholly insufficient to sustain the findings above referred to. It utterly fails to measure up to the requirements of Judge Redfield's rule hereinbefore referred to, and it does not amount to that "clear, competent, and convincing" evidence which is required by the authorities. Jones v. Gallagher,
Decree reversed, order vacated, and cause remanded to theprobate court. Let the petitioner there apply if he be soadvised. Let this result be certified to that court.
