Barrett v. MacDonald

Murphy, Justice

(dissenting).

It seems to me that all of the material facts in this case were fully considered and the controlling principles of law correctly applied in the original opinion of Mr. Justice Frank T. Gallagher.1 Accordingly, I respectfully dissent.

The opinion of Mr. Justice Frank T. Gallagher read in part as follows:

“1. In her appeal to this court appellant sets out 36 assignments of error, several of which attack the findings of the trial court as not being sustained by the evidence. No motion was made for a new trial. Where there is no motion for a new trial this court is limited, on appeal from a judgment, to a consideration of whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment. Olson v. Mullen, 244 Minn. 31, 68 N. W. (2d) 640; Potvin v. Potvin, 177 Minn. 53, 224 N. W. 461; Hickman v. Sutherland, 222 Minn. 161, 23 N. W. (2d) 593. We must also review the evidence in the light most favorable to the prevailing party.
“With those rules in mind it is our opinion, from examination of the record in its entirety, that the evidence here does sustain the findings of fact of the trial court and that those findings sustain the conclusions of law and judgment. It will serve no useful purpose to further extend this opinion with a detailed recital of all of the testimony submitted. We are satisfied from the examination of the record that the trial court was justified in finding that the error in the original final decree of the probate court, which was later amended, was a clerical one and not an error of law.
“It seems obvious from the testimony, as well as the stipulation, that the failure of the probate court, in the original final decree, to charge the bank’s claim to the distributive share of appellant was unintentional, and that it was a clerical error of an employee in the probate court office rather than a con*573sidered judicial determination on the part of the probate judge. It also appears from the record that the scrivener overlooked the stipulation and therefore failed to charge her distributive share with the shares of stock sold to pay the bank’s claim. The probate judge admitted that he thought he had not read the original decree prior to its execution and filing and frankly stated that it was the result of a mistake or inadvertence on his part and that of the scrivener.
“2. While from the stipulation it appears that decedent borrowed $100,000 from the bank and gave her promissory note therefor and pledged her stock as collateral security, it also clearly appears from the same stipulation that Susan P. Barrett acknowledged liability for the full amount of said indebtedness together with interest. The money borrowed was used by Mrs. Barrett’s husband in a business venture in California. It also appears, without dispute, that her attorney asked one of the representatives of said estate to make payment of said indebtedness immediately so as to stop the running of interest. The attorney also took the position and informed the representatives that whenever payment was made it should be a charge against Mrs. Barrett’s interest in the estate. At the time this request was made, it was known to both Mrs. Barrett and her attorney that it would be necessary to sell Minnesota Mining stock since there were insufficient funds in the estate with which to make such payment.
“After a careful consideration of the facts it is our opinion that the representatives during the course of administration made an advance to appellant of the amount of the common stock which was required to be sold to enable payment to be made of the $100,000 owing to the bank with interest. This is not an uncommon practice in probate court matters. The rule is well stated in 7 Dunnell, Dig. (3 ed.) § 3653, as follows:
“ ‘* * * A representative may distribute funds of the estate to the parties entitled thereto as heirs, legatees or devisees without a decree of distribution, but he does so at his peril. He assumes responsibility for distributing to the proper persons and in the proper amounts.’
“In 21 Am. Jur., Executors and Administrators, § 448, the rule is thus stated:
“ ‘Advances may be made by an executor or administrator to legatees or distributees prior to a partial or final distribution. Obviously, where such advances are made, they should be deducted from the respective shares of the legatees or distributees upon the distribution of the estate.’
“Appellant’s claim that she is entitled to participate equally with her sister in the distribution of all Minnesota Mining stock still owned by the es*574tate at the time of the issuance of the final decree, because there was a failure to make partial distribution in accordance with Minn. St. 525.482, is clearly without merit. The representatives did not rely upon this statute and made no effort to comply with it. The feature distinguishing a partial distribution under § 525.482 from an advance made during the course of administration is that in making a partial distribution under the statute a representative is relieved of all liability whereas in mailing an advance during the course of administration he does so at his peril. In the instant case the advance was in all respects proper since appellant was entitled to receive a good deal more than the amount of the advance. To permit her now to repudiate what was done and to share the remaining stock equally with her sister would in our opinion be improper.
“The trial court was within its rights in charging her with the $103,111.10 paid out in her behalf and in decreeing to her 1,594 shares less of Minnesota Mining stock than was decreed to her sister.
“Since the above opinion was prepared, a dissent has been written. We believe that the above opinion has already considered the objections raised in the first part of the dissent. With respect to that part of the dissent disagreeing with the court’s holding that the original final decree could be amended as was done here, we also refer to our opinion above. It is still our opinion, under the record here, that a clerical error existed and that the probate court could correct it by reason of § 525.02, which states that the probate court shall have power (§ 525.02[4]):
“ To correct, modify, or amend its records to conform to- the facts, and to correct its final decrees so as to include therein property omitted from the same or from administration.’
“The cases decided under this statute have uniformly assumed that the probate court possesses the same powers as the district court respecting amendment of decrees. See, also, Pearson, Minnesota Probate Practice, 20 Minn. L. Rev. 707, 718.
“While the court’s power to amend its decrees cannot be used as a cover for correcting judicial error after the time for appeal has expired, In re Estate of Turner, 181 Minn. 528, 233 N. W. 305, this court has often recognized that clerical error on the part of the judge can be corrected at any time.
“In McClure v. Bruck, 43 Minn. 305, 45 N. W. 438, an action in ejectment, the plaintiff’s attorney drew up findings which the court signed, giving plaintiff more land than he claimed in his complaint. The court corrected its judgment more than a year later and this court affirmed. As stated by Mr. Justice Mitchell (43 Minn. 307, 45 N. W. 438), ‘The court had the un*575doubted right, at least as long as the judgment was unexecuted, upon its attention being called to the fact, to correct its own records, so as to make the findings and judgment conform to what it intended they should be.’ Again in Chase v. Whitten, 62 Minn. 498, 500, 65 N. W. 84, 85, this court affirmed an amendment of a judgment which had erroneously declared a mortgage void, stating through Mr. Justice Mitchell that ‘the judicial mind never assented to the proposition that the mortgage was void, but * * * the order was worded as it was through the clerical mistake or inadvertence of the judge.’
“In United States Investment Corp. v. Ulrickson, 84 Minn. 14, 86 N. W. 613, 1103, the district court had entered a deficiency judgment in a foreclosure proceeding and later amended the judgment by striking the reference to the deficiency judgment. This court affirmed, saying (84 Minn. 20, 86 N. W. 616), ‘The fair inference is that it was not the original intention of the court to find that the plaintiff was entitled to a judgment for a deficiency, and that the amendment was made to make the record conform to the facts.’
“In the instant case it is our opinion that considering all of the circumstances it is apparent that the judicial mind did not intend the results reached in the probate court and that in the interests of justice the amendments were proper after the appeal period had expired.