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 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, 115 Cal.App.2d 92, 99-100 [251 P.2d 720].) ‘While a clerical error is no longer to he 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, *73as intended at the time of the rendition of the judgment, that it can be reached by a corrective nunc pro tunc order. ’ (Estate of Eckstrom, 54 Cal.2d 540, 545 [7 Cal.Rptr. 124, 354 P.2d 652].) ‘If the record shows clearly that there was no clerical error, the recital by the trial court will not be conclusive. ’ (Morgan v. State Board of Equalization, 89 Cal.App.2d 674, 682 [201 P.2d 859].) ”
Under these rules, the error was clearly judicial. The two orders meant different things, that is, the nunc pro tunc order altered the final judgment. The order made in 1954 was precisely the order the probate judge ordered entered. No one misconstrued the judge’s order or intent. It was simply a case of the trial judge entering an order that followed the precise terms of the petition without comparing it with the terms of the will. The court simply failed to interpret correctly the facts. Such an error is judicial. The error of the judge cannot be corrected in such a fashion.
The necessary result of the majority opinion will be to upset decrees that have been acted on by the parties after they have been final for many years. In every ease where the provisions of a decree of distribution are different from those of the will, and the original probate judge testifies that he really did not mean to sign the order but erroneously believed the order followed the will, the decree now will be subject to correction by a nunc pro tunc order. In the present case only a relatively few years elapsed between the two orders, but the rule announced applies where 20 or more years have elapsed. In such a fashion the finality of decrees of distribution will have been abolished.
It is true that the result reached by the majority gives effect to the intent of the testator, a result to be desired, but it also destroys the finality of decrees of distribution in every case where it appears that the probate judge signed a decree he should not have signed. The law provides a remedy for such errors—an appeal. After the time for appeal has elapsed only chaos can result from destroying the finality of the decree.
I would affirm the portions of the order appealed from.
Traynor, C. J., concurred.