Burnett v. Burnett

EDMONDS, J.

The controversy presented in this case concerns the effect of an order made

nunc pro tunc

purporting to amend a minute order and an order signed and filed the same day admitting two testamentary documents to probate.

W. I. Burnett died in 1929. His widow, the appellant here, and seven children, survived him. Shortly after his death, G. C. Burnett, a son, filed a petition for probate of a will dated December 24, 1915, and a codicil thereto made October 16, 1925, which were alleged to be “the last will and testament and codicil thereto of said decedent”. By the terms of this will and the codicil, which were filed with the petition, the appellant was given one-half of all her husband’s estate and G. C. Burnett was appointed “administrator”.

On August 16, 1929, another will dated May 5, 1927, was filed. This instrument recited that the testator had deeded

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to Ms wife a one-half interest in certain designated real property and the other one-half to “my ayers”, naming the seven children, and directed that all other property be divided equally between his wife and the heirs mentioned. No petition for the probate of this later will was filed. Upon a hearing, the petition for the admission of the will of 1915 and its codicil of 1925 was granted by an order in writing signed by the judge and endorsed “Piled Sep 3, 1929”.

By subsequent proceedings, administration of the estate was carried to a decree of final distribution which disposed of Mr. Burnett’s property'in accordance with the probate judge’s construction of the will of May 5, 1927. The testator’s widow took an appeal from this decree on the ground that the will on which it was based had never been admitted to probate. During the pendency of that appeal, the seven children, without notice to their mother, presented to the probate court an affidavit of the county clerk stating that the order of September 3, 1929, admitting the 1915 will and 1925 codicil to probate was incorrect, and that in fact the order made by the court on that day denied probate of the 1915 will and admitted the 1927 will. Upon this affidavit the court, on March 4, 1935, made an order correcting the minute order of September 3, 1929, and the signed order of the same date,