In re Estate of George H. Prouty

• Decision Date: 04 January 1933
• Parties: IN RE ESTATE OF GEORGE H. PROUTY
• Court: Vermont Supreme Court

163 A. 566

105 Vt. 66

IN RE ESTATE OF GEORGE H. PROUTY

Supreme Court of Vermont

January 4, 1933

October Term, 1932.

Judgment---Lack of Power of Probate Judge To Correct Order For Widow's Allowance Not Mentioned in Petition, and Concerning Which No Evidence Is Taken---When Transcript May Be Considered Part of Record---Construction of Language in Bill of Exceptions---Sufficiency of Reference to Transcript To Make Use Available in Supreme Court---Courts---Correction of Record by Nunc Pro Tunc Order---Discretion of Court---Question Whether Amendment to Record May Be Made One of Law---Limitation of Court's Power To Amend Record---Evidence Receivable on Petition To Correct Court's Records---Insufficiency of Evidence To Sustain Order Making Correction of Court's Record.

1. Order of probate court, on hearing petition to correct certain orders making allowances to widow for support correcting order as to such allowance not mentioned in petition, and concerning which no evidence was received at hearing, held erroneous.

2. Unless transcript is in some proper way made part of record it is not before Supreme Court for consideration.

3. Mere reference to transcript is insufficient to make it part of record, but express declaration to that effect is required.

4. Though language in bill of exceptions making reference to transcript must be construed against excepting party, Supreme Court must give such language reasonable construction.

5. On appeal from probate court language in bill of exceptions referring to transcript, making it part of such bill and stating that it should "be controlling as to the evidence for all purposes of this review," held to make it part of bill for all purposes, but controlling only as to evidence.

6. Probate court has inherent power to correct its decrees by nunc pro tunc order so that it will accord with decision rendered and speak truth.

7. Court should enter upon reexamination of its records with great caution and act only upon most conclusive evidence to correct them by nunc pro tunc order.

8. Question whether record shall be corrected by nunc pro tunc order is addressed to discretion of court who made it.

9. Question whether certain amendment can be made to record of court is one of law and is reviewable by Supreme Court.

10. Court's power of amendment cannot be used to rectify judicial error or omission, and under guise of correction court cannot add to its judgment a term not originally included therein, though it might or should have been so included, but may only embody whatever was actually adjudged in entry by nunc pro tunc order.

11. In proceeding to correct court's judgment record, any legitimate evidence may be admitted to prove facts, including recollection of court who made judgment order.

12. Evidence held insufficient to sustain finding that record of original order in probate court did not correctly recite order made by court with respect to allowance for widow, and that to make record correspond with order it should provide that sum allowed widow should be in lieu of interest on trust fund provided for her by her husband's will.

APPEAL IN PROBATE. From an order made on petition of the executor of the will of George H. Prouty, deceased, and in accordance with the prayer thereof, by the probate court for the District of Orleans, correcting previous orders made by such court during lifetime of deceased's widow, herself since deceased, with respect to allowances for her support, the executors of such widow's will and certain legatees therein named appealed to the Supreme Court. The opinion states the case. Decree reversed, order vacated, and cause remanded, with leave for petitioner to apply.

Decree reversed, order vacated, and cause remanded to the probate court. Let the petitioner there apply if he be so advised. Let this result be certified to that court.

Theriault & Hunt for the appellants.

Present POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

POWERS

George H. Prouty, late of Newport, died testate. He left a widow, Henrietta Prouty, who has deceased, leaving a will in which the appellants are named as beneficiaries. By his will, Gov. Prouty gave his widow a legacy of $ 15,000 and he gave to his brother, Edgar J. Prouty, the sum of $ 60,000, in trust, to pay to Henrietta the income thereof during her life, and therein providing that at her decease, the principal should belong to said Edgar J.

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 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. Cutler Co. v. Barber, 93 Vt. 468, 472, 108 A. 400. While the technical rules of pleading are greatly relaxed in probate matters, it is necessary, even in that court, to state your case and claim your remedy; and it would never do to say that one could ask for one thing and be granted another without amendment or proof. The prayer for general relief does not save this part of the decree. Any relief to which the petitioner is entitled on his allegations could be granted, but something entirely outside them, could not be. Nor is the order of May 1, 1925, a part of the same res covered by the allegations. As here presented, the orders made by the probate court were and are separate and distinct. One or more may be subject to amendment and correction, while the others are not.

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., 95 Vt. 58, 63, 112 A. 385; Francis v. London G. & A. Co., 100 Vt. 425, 429, 138 A. 780. We also agree that a mere reference to the transcript is not enough to make it a part of the record, and that an express declaration to that effect is required. Humbarger v. Humbarger, 72 Kan. 412, 83 P. 1095, 115 Am. St. Rep. 204, 205; Wright v. Griffey, 146 Ill. 394, 34 N.E. 941, 942. But the bill before us contains a further reference to the transcript as follows: "Said transcript is hereby referred to and made a part of this bill of exceptions and shall be controlling as to the evidence for all purposes of this review." While we must construe this language against the appellants, Higgins, Admr. v. Metzger, 101 Vt. 285, 298, 143 A. 394, it is our duty to give it a reasonable construction, Poulin v. Graham, 102 Vt. 307, 310, 147 A. 698; Goodwin v. Gaston, 103 Vt. 357, 371, 154 A. 772. The only reasonable construction of the above-quoted language, we think, makes it mean that the transcript is made a part of the bill for all purposes, but is to control only as to the evidence. And we hold that it is sufficient to enable the appellants to present the questions argued.

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, 90 Vt. 286, 289, 98 A. 45, and cases cited. But there is much good sense in what the elder Redfield said in Smith's Heirs v. Rix 9 Vt. 240, 241, that the court should enter upon a...