Filed 8/26/15 B ond v. Boshell CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

SCOT W. BOND,

Plaintiff and Appellant,

v.

MARGARET TW YMAN WARD BOSHELL et al.
,
Defendants and R espondents

. B258102
(Los Angeles County Super. Ct. No. BP150272)

APPEAL from an order of the Superior Court of Los Angeles County
, David S. Cunningham III , Judge. Affirmed.
Law O ffice s o f Michele A. Dobson
, Michele A. Dobson for Plaintiff and Appellant. Sacks, Glazier, Franklin & Lodise, Robert N. Sacks, Matthew W. McMurtrey,
Katherine G. McKeon for Defendants and Respondents

.

____________ _______________2

Scot W. Bond , an adoptee, ob jected to a trustee ’ s recommendation that he be
excluded from receiving a share of the remainder of a testamentary trust

. H e appeals an order of dismissal after the trial court sustained the trust remaindermen ’ s demurrer to his objection without leave to amend. We affirm.
BACKGROUND In 1983, Bertyce Ward Dahl created a will bequeathing her property to several individuals and a charity outright . Article six of the will directed that the residue of
Dahl ’ s e state be held in trust for the benefit of seven relatives, including her nephews
William T. and John P. Ward , and provided that the trust would terminate upon the death of the last surviving beneficiary , with the remainder of the trust estate going to the

“ lawful issue ” of William and John. Articles s even through 13 set forth standard generalized language concerning such matters as choice of law, will contests, taxes, interest, and the severability of any unenforceabl e provision.
Article 13 stated : “ The words ‘ lawful issue ’ as used in this Will shal l not include adopted persons nor the issue of adopted persons. ”
Dahl passed away on July 9, 1988, and her will was submitted for probate in the Ventura County Superior Court. O n February 29, 1989, in what we will call the

“ February order
, ” the cour t created the Bertyce Ward Dahl Testamentary T rust by directing that $50,000 be distributed to the trustees and authorizing them to manage and
distribute that amount

. The February order incorporated article six of Dahl ’ s will by quotation. As pertinent h ere, t he order stated that when the trust terminated, “ t he entire remainder of the trust estate shall thereupon go and be distributed as follows: [¶] . . . [¶]
b. One

- half thereof upon the principle of representation to the lawful issue of JOHN
PIERCE W ARD living at the date of the termination of this trust; provided, however, in the event there shall be no lawful issue of JOHN PIERCE WARD living at the date of the termination of this trust, said one

- half referred to in this subparagraph b shall go to

au gment the distributions pursuant to subparagraph a of this Section 2. ” The other one

half of the remainder was ordered to be distributed to the lawful issue of William T.
Ward

.3

The February order failed to incorporate article 13 of the Dahl will or otherw ise
define the term “ lawful issue. ” On July 24, 1989, in what we call the “ July order
, ” the court on its own motion
issued an order correcting the February order nunc pro tunc so as to include the same
definition of the phrase lawful issue as was set for th in article 13 of Dahl ’ s will : “ ‘ For purposes of this trust, t he words “ lawful issue ” shall not include adopted persons nor the issue of adopted persons. ’ ”
T he last surviving beneficiary of the Dahl trust passed away in March 2014, after
which the tru stee, Wells Fargo Bank, filed a petition in the Los Angeles Superior Court requesting that the court identify the remaindermen , i.e., the lawful issue of William T.
and John P. Ward

. The natural children of William T. Ward were Margaret Boshell and
Ann Ku hn , real parties in interest here . John P. Ward had no children of his own but had adopted Bond and Robert Ward , the sons of his spouse, when they were young adults. Wells Fargo recommended that only Boshell and Kuhn receive the trust ’ s remainder
because Bond and Ward 1 were adoptees
, and were excluded as lawful issue as set forth in
Dahl ’ s will and the (corrected) February order

. On May 2014, Bond filed an objection to the trustee ’ s petition , argu ing an ambiguity existed between article s six and 13 of Dahl ’ s will. Bond contended that
because article six stated John P. Ward ’ s issue would receive half of the trust estate ’ s remainder
, and Dahl knew when she signed the will that John P. Ward had only adopted
children
, her clear intent was to include adopte d children as remaindermen

. He also argued article 13 , which defined lawful issue to exclude adopted children
, w as a standard, boilerplate clause that did not fit Dahl ’ s family situation or reflect her intent

. Finally,
Bond argued the July order was impr oper because it was made without notice. Margaret Boshell and Ann Kuhn demurred to the objection, arguing Dahl intended to exclude adopted children under the will. The court agreed, and sustained the demu rrer without leave to amend.

1 Ward p redeceas ed the termination of the trust.4

Bond timely appeal ed

. DISCUSSION On appeal, Bond, abandons his original arguments, now arguing only that the Ventura County probate court had no authority in July 1989 to modify the February
order

. A. Interpretation of the February o rder

“ ‘ The administration of a decede nt ’ s estate involves a series of separate proceedings, each of which is intended to be final

. . . .’ [Citations.] A decree of distribution is a judicial construction of the will arrived at by the court ascertaining the
intent of the testator. [Citation s.] Once final, the decree supersedes the will [citations] and becomes the conclusive determination of the validity, meaning and effect of the will, the trusts created therein and the rights of all parties thereunder. ” ( Estate of Callnon (1969) 70 Cal.2d 150, 156 , fn. omitted .) If the terms of a will are unambiguous and are susceptible to only one meaning, the intent of the testator is determined from the face of the instrument itself. ( Estate of
Pierce (1948) 32 Cal.2d 265, 273.) The paramount rule in the construction of wills, to which all other rules must yield, is that a will must be construed according to the intention of the testator as expressed therein, and this intention must be given effect. ( Ibid. ) The words “ lawful issue ” in a will are con strued so as to include adopted children unless a testator uses language clearly communicating a contrary intent. ( Estate of Huntington (1976) 58 Cal.App.3d 197, 207.) Whether an adopted child is included within the meaning of “ lawful issue ” depends on t he particular circumstances of each case, and is determined from the general scheme or purpose of the will considered as a whole. ( Estate of Pierce , supra , 32 Cal.2d at p. 271.) If a testator directs that property be held in trust for the benefit of legat ees, a testamentary trust may be created by the probate court by a decree transferring the property to a trustee . (Prob. Code, § 15200, subd. (c).) Such a trust , like all trusts, will terminate when its term expires, and upon termination the trustee will continue to enjoy the powers reasonably necessary under the circumstances to wind up the trust ’ s affairs.5

(Prob. Code
, § 15407.) At the expiration of a testamentary trust, the trustee, the trustor ’ s personal representative
, or any other interested perso n may petition the court for an order
for final distribution of a decedent ’ s estate. (Prob. Code
, § 11600.) During these proceedings, any interested person may file a written statement of interest in the estate in support of or in opposition to the peti tion. (Prob. Code
, § 11702.) A will may be contested by objection to a petition for final distribution . (Prob. Code, § 8250.) Such an objection is in the nature of a pleading, to which the petitioner or any other interested person may respond by answer or demurrer. “Demurrer may be made on any of the grounds of demurrer available in a civil action. If the demurrer is sustained, the court may allow the contestant a reasonable time, not exceeding 15 days, within which to amend the objection. If the dem urrer is overruled, the petitioner and other interested persons may, within 15 days thereafter, answer the objection. ” (Prob. Code
, § 8251, subd. (b).) One ground for demurrer is that the objection fails as a matter of law to raise a cognizable challenge to the proposed final distribution. In ruling on the demurrer to the objection, the trial court must consult the testamentary instrument at issue, be it the testator ’ s will or a prior decree of distribution. However, w here a decree of distribution is c ontrary to the provisions in a will, the decree controls and prevails over the terms of the will. ( Meyer v. Meyer (2008) 162 Cal.App.4th 983, 992.) Only if the language of the decree is “ uncertain, vague, or ambiguous ” may courts consult the will, and ev en then only to establish the true meaning and intent of the decree, not to contradict it. ( Estate of Callnon
, supra , 70 Cal.2d at p. 157; Estate of Goldberg (1938) 10 Cal.2d 709, 713.) If the distributive portions of the decree are unambiguous, the will may not be consulted in order to create an ambiguity. ( Estate of
Callnon
, supra , 70 Cal.2d at p. 157.)
A court reviewing a judgment of dismissal after the trial court has sustained a
demur rer without leave to amend applies two separate standards of revi ew. ( Crowley v.
Katleman (1994) 8 Cal.4th 666, 672; Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1049.) First, the court reviews the objection de novo to determine whether it states a cause of action
, and in doing so accept s as true material factual all egations together with6

properly judicially noticed facts. ( Beckwith v. Dahl
, supra , 205 Cal.App.4th at p. 1049. )
An appellate court will reverse only if the alleged facts show the claimant is entitled to relief under any possible theory. ( Ibid. ) Second
, the reviewing court will apply the abuse
of discretion standard to de termine whether the trial court ’ s refusal to grant leave to amend was proper

. ( Ibid. ) Under this standar d, reversal is prop er only if there is a
reasonable possibility the pleading ca n be cured by amendment. ( Ibid. ) In considering a demurrer, the c ourt give s the pleading a reasonable interpretation, reading it as a whole and its parts in their context. ( Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) A pleading otherwise good on its face is subject to demurrer when judicially noticed facts render it defective. ( Ibid. ) A court may take judicial notice of its
own records or those of another court
, and of matters that are capable of immediate and
accurate determination and are not reasonably subject to dispute

. ( Evid. Code
, § 452,
subd s . (d) , (h) .) Here, t he Febr uary order unambiguously provide d that the phrase “ lawful issue ”
did “ not include adopted persons nor the issue of adopted persons. ” Bond, as an adoptee,
therefore fail ed to qualify as a remainderman , and his objection to a final distribution that
would exclud e him was meritless as a matter of law

. Bond does not dispute this reasoning, but instead argues the Ventura County trial court had no authority in July 1989 to co rrect its February order. We disagree.
B. A t rial court enjoys limited authority to correc t its own orders Generally, after a decree of distribution of an estate becomes final it may no longer be subjected to change or modification with respect to the me asure of the rights of persons interested in the estate. ( Estate of Goldberg
, supra , 10 Cal.2d at p. 713.) However, when it appears a clerical error has been committed and carri ed into the judgment or decree, the court may correct the error. ( Id. at p. 7 14.) Courts have the
inher ent power to make retroactive entries t o correct clerical errors in court records to
make them reflect the true facts. ( Wexler v. Goldstein (1956) 146 Cal.App.2d 410, 412;
In re Candelario (1970) 3 Cal.3d 702, 705.)7

The power to amend extends “ to cases where some provision of or omission from an order or judgment as m a de or rendered was due to the inadvertence or mistake of the court and may therefore properly be treated as a clerical misprision rather than a judicial

error. ” ( Estate of Goldberg
, supra , 10 Cal.2d at pp. 715

- 716.) When “ it so clearly appears that the judgment as entered is not the sentence which the law ought to have pronounced upon the fac ts as established by the record
, that the court acts upon the presumpti on that the error is a clerical misprision rather than a judicial blunder, and set s the judgment, or rather the judgment entry, right by an amendment nunc pro tunc

. ” ( Id. at p. 716. ) However, “ it is not proper to amend an order nunc pro tunc to correct j udicial inadvertence, omission, oversight or error, or to show what the court might or should
have done as distinguished from what it actually did. . . . It may not be used as a vehicle to review an order for legal or judicial error by ‘ correcting ’ the or der in order to enter a

new one. ” ( Hamilton v. Laine (1997) 57 Cal.App. 4th 885, 891.) “ The distinction between clerical error and judicial error is ‘ whether the error was made in rendering the judgment, or in recording the judgment rendered. ’ [Citation. ] A ny attempt by a court, under the guis e of correcting clerical error
, to ‘ revise its deliberately exercised judicial
discretion ’ is not permitted. ” ( In re Candelario
, supra , 3 Cal.3d at p. 705 ; Estate of
Eckstrom (1960) 54 Cal.2d 540, 545 [“c lerical er rors do not include those made by the court because of its failure to correctly interpret the law or apply the facts ”].)
In Hamilton v. Laine , a child suffered severe and permanent brain damage after a swimming pool accident. ( Hamilton v. Laine
, supra , 5 7 Cal.App.4th at p. 887.) In 1985,

t he trial court entered an order approving a compromise of the minor ’ s claim against the pool ’ s owners, pursuant to which a lump

- sum payment was ordered placed into a medical
trust fund. ( Ibid. ) Ten years later, the mi nor, through his guardian ad litem, requested that the medical trust be restructured as a special needs trust, and further requested that the restructuring be made retroactive so as to avoid a Medi

- Cal lien that had arisen in the
meantime

. T he trial court granted the relief prayed for by entering an order that
established a special needs trust that related back nunc pro tunc to 1985. ( Id . at p. 889.)8

On appeal, t he appellate court held the nunc pro tunc order exceeded the trial court ’ s authority because it was made not to correct a clerical error but “ to redress . . . a judicial
omission. ” ( Id. at p. 892.) Here, the Ventura County probate court
, presumably intending to effect Dahl’s wishes, quoted the language of her will extensively to create the Bert yce Ward Dahl Testamentary Trust in February 1989

. Although t he court incorporated as part of its
order Dahl ’ s directions regarding distribution of the remainder of her trust estate to the lawful issue of her nephews , it failed to effect the exception she had made to those
directions. This was clearly a ministerial rather than a judicial error, as the court followed the will in all other pertinent respects. Unlike in Hamilton , where the court ’ s professed intent was to change its original order nunc pro t unc, here, nothing in the record suggests the Ventura County court intended to ignore some of Dahl’s wishes while effecting others

. Bond contends the July order was improper because it “completely changed the legal effect” of the February order. But whet her the July correction changed the legal effect of the February order is irrelevant. ( Most corrections change the things corrected. ) The question is whether the omission in the February order was deliberate or inadvertent

. As discussed, the Ventura Cou nty probate court always intended to follow Dahl’s
instructions in order to effect her wishes , one of which was to exclude adoptees as
remaindermen. That the court initially failed to follow one instruction out of many was clearly a ministerial oversight

. The court acted within its authority to correct the error nunc pro tunc.9 DISPOSITION The judgment is affirmed. Each party is to bear its own costs.
NOT TO BE PUBLISHED.

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

MOOR, J. *

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.