In re the Estate of Hutchinson , 45 Misc. 2d 712 ( 1965 )

John D. Bennett, S.

Motion to resettle the decree of November 30,1964, on the ground that certain statements therein inaccurately state the true facts, is granted to the extent that the word “ executor ” in line 3 of page 14 of the decree is corrected to read 1 ‘ trustee ’ ’, and is in all other respects denied.

There appears to be no question but that the order of December 31,1952, permitted Leonard W. Hall to resign as trustee only and not as executor. Once a fiduciary qualifies and assumes the administration of an estate, he cannot resign except by following the procedure governing the resignation of fiduciaries as outlined in sections 102 and 103 of the Surrogate’s Court Act (Matter of Busto, 173 Misc. 25, affd. 258 App. Div. 980).

Subdivision 6 of section 20 of the Surrogate’s Court Act gives the Surrogate power to modify or resettle a decree or order of

liis court because of a “ clerical error The “ clerical error ” referred to means an arithmetical error or an inadvertent mistake of fact, but does not include a mistake of law or other substantial change not due to an inadvertent mistake of fact (Matter of Heller, 33 Misc 2d 798, and cases cited). The only clear misstatement of fact in the decree is the reference to Mr. Hall’s resignation as executor rather than as trustee. The other requested changes do not appear to be so clear and simply a matter of clerical error as would warrant a correction at this time.