concurring in result.
I am constrained to concur in the result reached by the majority in this ease. I do not agree, however, with the conclusion of the majority that the provisions of ORS 18.160 are not available to the petitioner. In this respect, my reasons would be the same as those expressed by O’Connell, C.J., in his dissent. Neither do I agree with the statement in the majority opinion that the trial court could have inferred that petitioner actually intended to close the estate. I accept completely the petitioner’s statement that the estate *61was closed as a result of a clerical error. There would be absolutely no reason for petitioner to close the estate while the other litigation was unresolved.
In his motion to set aside the order closing the estate, the petitioner relied on OES 18.160 but requested that the order be entered nunc pro tunc as of the date the estate was closed. As I read the letter opinion of the trial judge, he did not believe that he had authority to enter such an order nunc pro time.① I agree.
“The office of a nunc pro tunc entry is to make a record of what was previously done, but not then entered; not to make an order now for then, but to enter now for then an order previously made.” Klein v. Southern Pacific Co., 140 F 213 (CC Or 1905). It is the purpose of a nunc pro tunc order to supply an omission in the record of action actually taken but omitted from the record through inadvertence or mistake, or to enter an order which should have been made as a matter of course and as a legal duty. Cranston v. Stanfield et al, 123 Or 314, 319, 261 P 52 (1927). See also Turlay v. Farmers Insurance Exch., 259 Or 612, 488 P2d 406 (1972).
In the instant case it was not a question of supplying an omission in the record of action actually taken by the court or making a record now of action taken previously. Petitioner was requesting the court to change an order which, for all intents and purposes, was a valid order at the time it was entered by the court.
*62The majority opinion affirms the trial court for the reason that the petitioner has not shown an abuse of discretion by the trial judge in denying the motion to set aside the order closing the estate. I reluctantly reach the same result, but would affirm on the ground that the trial court did not have authority to enter an order nunc pro tunc setting aside the original order closing the estate.
McAllister, J., joins in this opinion.The court stated:
“In any event it would appear to the court that there is no inherent power in the court to grant such a petition by entering an order nunc pro tunc unless the mistake were that of the court itself, which it wasn’t. * * *”