MYRTLE REEVES et al., Executor and Executrices of the Last Will and Testament of the late W. THOMAS BERNARD, SR., Petitioners, v. HER HONOUR GLADYS K. JOHNSON, Commissioner of Probate for Montserrado County, MARTHA STUBBLEFIELD-BERNARD and KARIN BUHRIG, also Executrices of the Last Will and Testament of W. THOMAS BERNARD, SR., Respondents.

PETITION FOR A WRIT OF CERTIORARI GROWING OUT OF THE RULING FROM THE PROBATE COURT FOR MONTSERRADO COUNTY

Heard: May 21, 1979. Decided: June 1, 1979.

1. The Decedents Estates Law and Probate Procedure Law mandates that in all estates, whether testate or intestate, an inventory must be taken showing all of the assets of the estate within a maximum of two months after the granting of the letters. The law also requires that should additional assets be discovered after the first inventory, another inventory called a supplemental inventory shall be taken.
2. In the absence of an inventory, legacies mentioned in a Will cannot be available for distribution to legatees.
3. A widow’s petition for dower focuses on the need for compliance with the statute requiring inventory and appraisement, as dower cannot be admeasured without an inventory and appraisal of the assets of the estate.
4. The Decedents Estates Law and Probate Procedure Code provides that all estates, whether testate or intestate, must be administered and closed within twelve months; and only in cases where there are foreign debts should an estate be allowed to remain open longer than twelve months.
5. As the custodian of all estates, the probate court is vested with the authority and responsibility to oversee the administration of a testate estate even where the testator exercises his right not to require the executors and executrixes to file a bond. So where there is any form of mismanagement of the testate estate, even in the absence of a requirement for a bond from the executors and executrixes, the probate court should take immediate remedial actions to protect the estate.
6. The judge of a court of record can review and rescind or modify his ruling only within term time. Therefore, the judge of a probate court, which has a month-to-month term, cannot review and rescind or modify a ruling four months after it was rendered.
7. If it is determined that a judgment or ruling is irregular or erroneous, it must be corrected by some proper proceeding for that purpose; it cannot be merely disregarded and the proper judgment or ruling entered anew. During the term in which the judgment or ruling was entered, the correction may be made by an order of the court upon a mere suggestion of the error.
8. Certiorari will lie to review and reverse a second ruling of a probate court which purports to reverse and rescind a ruling after the term in which the first ruling was made and to reinstate said first ruling.
9. The payment of accrued costs by a petitioner for the writ of certiorari is not mandatory; rather, it is discretionary on the part of the Chambers Justice to require the payment of accrued costs before the issuance of the alternative writ.

W. Thomas Bernard, Sr. who died in a tragic motor accident, left a Last Will and Testament in which he named his brother, wife, sisters and a Ms. Karin Buhrig as executor and executrixes of his estate. He provided in the Will that his executor and executrixes should not be required to file a bond.

More than two years after the executor and executrixes were sworn into office, they had not filed an inventory as required by law and the estate was by then in existence longer than provided for by law. Meanwhile, the brother and sisters of the late W. Thomas Bernard, Sr., executor and executrixes, filed a petition for proper accounting against Ms. Karin Buhrig, one of the other executrixes, demanding that she account for the assets of the Yes Transport Company, which was part of the corpus of the estate. Also, the widow of W. Thomas Bernard, Sr., herself being an executrix, filed a separate petition to allow her to exercise the right of election of a dower in the estate in lieu of what was provided for her in the Will.

The probate judge first ruled that the widow’s petition for dower be set aside until after the disposition of the petition for proper accounting and the filing of an inventory by the executor and executrixes. Four months later, even though the petition for proper accounting had not been disposed of and no inventory of the estate had been filed by the executor and executrixes and approved by the probate court, the widow repeated her petition for exercise of her dower rights. This time, the probate judge granted the petition for dower right. From this second ruling of the probate judge granting the right to elect dower in lieu of provisions in the Will, the petitioners prayed for the alternative writ of certiorari, which was granted by the Chambers Justice. However, because of the constitutional issue raised in the pleadings with respect to the exercise of dower rights by the widow, the Chambers Justice referred the matter to the Full Bench for hearing.

After hearing arguments pro et con, the Supreme Court ruled that the probate court judge erred, when four months after she made the first ruling suspending the disposition of the petition for dower right pending the disposition of the petition for proper accounting and the filing of inventory, she made a second ruling granting said petition for dower right, thereby purporting to rescind the first ruling. The Supreme Court ruled that the probate court, being a monthly court, can review and rescind or modify a ruling only within the term in which it was delivered, not four months after its delivery. The Court said that only the Supreme Court could review that ruling after the expiry of the term time. The Supreme Court also ruled that the executor and executrixes had violated the law requiring the filing of an inventory within a maximum of two months after being admitted to their offices and had also violated the law requiring the closing of estates within one year after the granting of the letters testamentary. The Supreme Court held further that even though the testator exercised his right not to require his executor and executrixes to post bonds, yet the probate court, as the custodian of all estates, intestate and estate, had the responsibility, duty and authority to ensure that the executor and executrixes perform their offices properly. Because they were found not to be doing so, the probate court should have taken appropriate remedial action. The Supreme Court also ruled that dower cannot be admeasured without an inventory of the estate. Accordingly, the probate court properly held in its first ruling on the petition for dower rights that said petition be suspended pending the filing of an inventory of the estate and the approval of that inventory by the probate court.

Specifically because the probate court had erred in attempting to rescind its first ruling on the petition for dower right outside of the term time in which it was rendered, the Supreme Court granted the peremptory writ of certiorari and ordered that the admeasurement of dower rights should await the filing and approval of an inventory of the estate.

Joseph J. F. Chesson appeared for petitioners. M. Fahnbulleh Jones appeared for respondents.

MR. CHIEF JUSTICE PIERRE delivered the opinion of the Court.

Our Decedents Estates Law and Probate Procedure Code man-dates that in all estates, whether testate or intestate, an inventory must be taken showing all of the assets of the estate. The law also requires that should additional assets be discovered after the first inventory, another inventory, called a supplemental inventory, shall be taken. We quote hereunder the relevant statute word for word for the benefit of this opinion.

“Inventory and Appraisement

Within two months after his appointment, unless a longer time shall be granted by the court, every executor or administrator shall make and return a verified inventory and appraisement in one written instrument, of all the property of the decedent which shall come to his possession or knowledge, including a statement of all encumbrances, liens, and other charges on any item. Such property shall be classified therein as follows:

1. Real property with plot or survey description;
2. Furniture, household goods, and wearing apparel;

100. Corporation stocks described by certificate numbers;

4. Mortgages, bonds, notes, and other written evidence of debt, described by name of debtor, recording data and other identification;
5. Bank accounts, insurance policies of which the estate is the beneficiary, and money;
6. All other personal property accurately identified, including the decedent’s proportionate share in any partnership, but no inventory of the partnership property will be required.”
7. “Requirement as to Appraisement

At the time letters testamentary or letters of administration are granted, the court shall appoint two suitable, disinterested persons as appraisers, to whom the executor shall exhibit the inventory. The appraisers shall determine and state in figure opposite each item contained in the inventory the fair net value thereof, as of the date of decedent’s death, after deducting the encumbrances, liens and charges there-on, and forthwith deliver such inventory and appraisement, certified by them under oath, to the personal representatives who shall file it with the court. The appraisers shall be allowed such reasonable fees, necessary disbursements and expenses as may be fixed by the court, which shall be paid by the executor or the administrator as expenses of the administration.”

“Supplementary Inventory and Appraisement

Whenever any property not mentioned in the inventory comes to the knowledge of an executor or administrator, he shall either make a supplementary inventory thereof and cause such property to be appraised, such supplementary inventory and appraisement to be returned within thirty days after the discovery thereof, or include the same in his next accounting, unless the court shall order a particular manner of return. Decedents Estate Law, Rev. Code 8:119.1 & 119.2.

Our review of the records of this case reveals that none of these statutory requirements was complied with in the handling of this estate. Moreover, it is clear from the quoted text of this law that the Legislature made no exceptions to the rule with respect to any estates cognizable before the probate courts of this country.

The decedent in this case has been dead for more than two years. Nevertheless, compliance with this law has not been required or enforced, although the estate has been in the Probate Court for Montserrado County, and has been involved in bitter contest between the widow (herself an executrix) and another one of the executrixes, on the one hand, and the executor and the two other executrixes, on the other hand. The relevance of this situation to the certiorari proceeding before us will be seen later in this opinion.

Moreover, Rule 6 of the Probate Court Rules governing estates reads, as follows:

“Every executor or executrix named in a will, or administrator, administratrix, guardian or trustee appointed by court, shall within twenty days after their qualifications, return a full inventory of the estate under their charge, with bond to cover the same for the court’s approval; and all additional property not included in the first inventory shall immediately upon discovery be reported to the court for supplemental inventory to be made thereof. In every case the bond covering the estate shall be double the inventoried valued thereof.”
This rule is not in conflict with the statute quoted herein above, except as to time within which inventory should be filed. Therefore it is as binding on all estates, as is the enacted statute quoted above. Issues, which have arisen in the case out of which this certiorari proceeding grows, show clearly the wisdom of this statute and of this rule of the probate courts; and later we shall say more about bonds in such cases.

Now here is the history of the matter. The late W. Thomas Bernard died in a tragic motor accident on the 6th of March, 1977. His Last Will and Testament offered in the Probate Court for Montserrado County in Monrovia devised and bequeathed real and personal property to his widow and several children named therein and nominated in the fifteenth clause thereof the executrixes and executor of his said Last Will and Testament in these words:

“I hereby appoint my wife, Martha Bernard, my brother, Vivian Reeves, and my sisters, Myrtle and Thelma Reeves, and Karin Buhrig, sole executor and executrixes of this Last Will and Testament or testamentary papers by me at any time heretofore made; and because of the confidence I have in my executor and executrixes, I hereby direct that they be allowed to serve in said capacity without giving bond or security whatsoever.”

The Will was proven and the following oath was administered to the executor and executrixes on the 23rd of June, 1977:

“We, Martha Bernard, Vivian Reeves, Myrtle Reeves, Thelma Reeves and Karin Buhrig, executor and executrixes of the testate estate of the late William Thomas Bernard, Sr., deceased of the City of Monrovia, Montserrado County, Republic of Liberia, do hereby solemnly swear that to the best of our abilities and skills will faithfully and truly administer the aforementioned estate and execute the desires and wishes of the said testator in accordance with the directives of this Honorable Court. SO HELP US GOD.”
Each and all of them named hereinabove were sworn and each of them signed the oath to faithfully execute the desires and wishes of the testator. Letters testamentary were issued in accordance with the oath taken by them and administration of the estate was entered upon, without an inventory having been taken or appraisers appointed by court as is required by statute and by rule of court.

The records before us show that after letters testamentary had been issued, and in the absence of any protests against the Will, the widow who was also nominated and qualified as executrix on the 12th of April, 1977, filed a petition in the Probate Court for Montserrado County, which petition reads, as follows:

“And now comes before this Honorable Court, Martha Bernard, widow of the late W. Thomas Bernard, Sr., petitioner in the above entitled cause and most respectfully petitions this Honourable Court as follows to wit:

1. That petitioner is the widow of the late W. Thomas Bernard, Sr., who died on the 6th of March, A. D. 1977, and also one of the executrixes of the Last Will and Testament of the late W. Thomas Bernard, Sr., which has been offered for admission into probate in keeping with law.
2. That in her good judgment petitioner elects to take one third of all shares of stocks owned by the testator, W. Thomas Bernard, Sr., in all companies, corporation and businesses, and one third of all bank accounts in any and all banks within the Republic of Liberia and elsewhere in the world that her late husband died in actual or constructive possession of in lieu of whatever and all personal properties or money bequeathed to her under the Will, and one third of all testator’s personal properties except for the furnishings and appliances within the house they lived in at the time of testator’s death, which are reserved to petitioner under the Decedents Estates Law.
3. That petitioner further says that she elects to have a fee simple title of the dwelling house, in which both she (petitioner) and the testator, W. Thomas Bernard, Sr., her late husband, lived at the time of his death, together with the grounds inside of the fence and any other houses that form a part of the corpus of the estate in lieu of whatever real property testator bequeathed to petitioner and petitioner’s rights to one third of all real properties owned by testator at the time of his death.

Wherefore, your petitioner prays this court in keeping with chapter 4, section 4.1, sub-section 1,3,4, & 5 of the New Decedents Estate Law, approved May 26, 1972, to order that the said real and personal properties elected by petitioner be apportioned and given to petitioner in accordance with law and procedure; and grant unto petitioner such other and further relief in the premises as may seem just and proper.”

We shall come back to this petition of the widow and pass upon the effect it has had on this certiorari proceeding.
About a year later, that is to say in April 1978, Myrtle Reeves, Thelma Reeves, and Vivian Reeves, co-executrixes and executor, respectively, of the Will, filed an application in the probate court asking that their co-executrix, Karin Buhrig, account for assets of the Yes Transport Company, and other properties alleged to be portions of the decedent’s estate entrusted to her management. The application is quoted as follows:

“In Re.: The Application of Vivian Reeves, Myrtle Reeves, and Thelma Reeves, executor and two of the executrixes of the Testate Estate of the late W. Thomas Bernard, Sr. of Monrovia, Liberia, for proper accounting to be made by Karin H. E. F. Buhrig, general manager of Yes Transport
Applicants showeth the below reasons, to wit:

1. That the late W. Thomas Bernard, Sr., their brother, died having contrived in his Last Will and Testament, naming them as the majority executor and executrixes to administer the affairs of his said estate.
2. That they have been qualified and issued letters testamentary by this Honourable Court to administer the said testate estate.
3. Having been clothed with such legal authority by this Honourable Court, in keeping with the law in such cases made and provided, they applied to the said Karin H. E. F. Buhrig, general manager, for an account of some of the assets of the business under her supervision, which she has refused to do, as per the attached document or letter from her in reply to their request dated November 23, 1977.
4. Executor and executrixes respectfully request court to require said General Manager Buhrig to account fully for the following:

(a) Funds from Yes Transport, Inc.;

(b) Rents from motel in Sinkor;

(c) Shop on Camp Johnson Road;

(d) Duplex in Sinkor;

(e) Houses on Bushrod Island;

(f) Gas station in Sinkor;

(h) Proceeds from rubber farm on Dublin Island Road, Kakata;

(i) To produce deeds or relevant documents for property in Germany

(j) The insurance policy in the name of W. Thomas Bernard for the education of daughter Vivian;

(k) Vehicles that have been sold; and

(l) The Mercedes Benz ordered by the late W. Thomas Bernard prior to his demise.

Wherefore, in view of the fact that applicants are account-able to this Court and to the legatees and beneficiaries of the said estate to execute the terms of the said Last Will and Testament of Testator, W. Thomas Bernard, Sr., which applicants would be unable to do if the assets were devastated. Hence, applicants pray Your Honour to cause a writ of summons to be issued and served on the said Karin H. E. F. Buhrig, general manager of Yes Transport, Inc., to appear before Your Honour to make a detail account of the above listed items and to grant unto applicants such further and other remedy as the nature of the case admits of and that justice demands.”
According to count seven of the petition for the writ of certiorari, although the widow had filed a petition for the court to grant her certain elected properties of the estate in lieu of devises and bequeaths made to her in the Will, no notice of this petition had been served on the other executrixes and the executor up to the time they applied to the court for Karin Buhrig, another of the executrixes, to account for her management of the Yes Transport Company, etc. What effect this alleged failure to notify the other executor and executrixes of the filing of the widow’s petition was to have in the handling of estate is not important in keeping with the position we have taken. Of course, counsel for the widow denied that they had failed to notify the executor and other executrixes of the filing of the aforesaid petition.

On the 13th day of April 1978, the court met and called the case to pass upon the widow’s petition for her to be granted property she had elected as her dower in lieu of what was devised and bequeathed to her in the Will. Counsel for the widow called the court’s attention to the failure of respondents to react to the widow’s petition. Respondents’ counsel resisted the request for hearing of the widow’s petition until after the assets of the estate had been accounted for by co-executrix Karin Buhrig. He made the following record:

“Applicant therefore requests court to defer the hearing and finalization of the petition for admeasurement of dower until after the disposition of the application for proper accounting of the assets or other incomes of the estate from which the widow and other legatees and beneficiaries would derive their said benefits. Applicants not having filed an answer obviously conceded the legality of the petition, but it is premature to dispose of same at this stage and unsettled status of this estate.”

The court then entered the following ruling with respect to the widow’s petition, as well as the application for proper account-ing:

“The Court: The petition of Martha Bernard, which has been before this court for over a year now for the ad-measurement of her dower will be passed upon after the court is satisfied that the property or properties to be admeasured are available. Presently there is an application for proper accounting by one of the executrixes based on certain complaint or allegation in respect of the very same funds from which the widow’s shares had to be admeasured. To be specific, there is in the said application for accounting an allegation that certain withdrawal has been made from the deceased’s personal account at the Bank of Liberia. It is in the best interest of the widow that her petition be heard, which will be granted because it is her constitutional right, and also because it has not been challenged by anybody, but said hearing shall be conducted after the application for proper accounting has been heard and settled. It is then that the court and the parties themselves will be able to determine what constitute the one third of the personal money or deposit belonging to the deceased. We therefore rule that the petition will not be passed upon until it is established that the funds asked for are still where they should be, and if not there now because of interference, that they are put back so that they can be admeasured unto the widow. And it is hereby so ordered.”

The widow’s counsel excepted to this ruling and gave notice that he would take advantage of the statute in such cases made and provided. The matter was then suspended. As we have said, this was on the 13th of April, 1978.

Four months later, on the 19th of July, 1978, the estate matter was called again, and the widow insisted upon the hearing and determination of her petition for admeasurement of dower. So for the second time the court was being asked to pass upon the widow’s petition, and for the second time the court entered a ruling. Here is the relevant portion of that second ruling:

“….The application (for proper accounting) having been heard and is still under investigation, the widow had again come requesting court to grant her petition for admeasurement of dower. Said petition not having been resisted was already granted in the Will; it remains only for the record to show in a formal way.

For quite some time now investigations have been going on into the account of Yes Taxi Company. The Court is not yet informed as to when these investigations will be concluded, or whether the Yes Transport Company is insolvent or not. However, the Court is satisfied to an extent, having heard from both sides the facts and circumstances that led to the application for proper accounting, and is of the opinion that the widow, who has waived her right to take under the Will, and has elected to take under her dower right, which decision on her part has not been objected to by anyone, it is therefore her right to so take.

We therefore rule that the Will made by the testator bequeathing to his widow certain properties, as spelled out in the Will, be set aside, and that her petition for admeasurement be and the same is hereby granted, and that the executor and executrixes admeasure unto the widow at the proper time her shares as asked for in the petition. The clerk is ordered to prepare a decree to that effect. And it is hereby so ordered.”

To this ruling the respondents took exception. The widow’s counsel excepted to the ruling in April deferring decision on the admeasurement of dower until after proper accounting had been determined; and now counsel for the executor and other executrixes had taken exception to the second ruling granting the widow’s petition before the application for proper accounting was decided. It would seem that the second ruling on the same subject matter was in contravention of the first; and it was at this stage that Myrtle Reeves and Thelma Reeves, executrixes and Vivian Reeves, executor, filed a petition in the Chambers of our distinguished colleague, Madam Justice Brooks-Randolph for the writ of certiorari.

The Justice in Chambers ordered that the alternative writ be issued, and the matter sent forward for the Full Bench to hear because of a constitutional issue raised in the petition. This is how this matter came before us for hearing and determination.

Before we proceed to pass upon the issues raised in this proceeding, we would like to observe that under our Decedents Estate Law and Probate Procedure Code, all estates in Liberia, whether testate or intestate, must be administered and closed within twelve months. Only in cases where there are foreign debts may the estate remain open for longer than twelve months. Nungbor v. Fisk, 13 LLR 304, 308 (1958). This estate has been under administration for two years. There is no indication that the estate is in debt because there is no inventory filed to show that the estate owes anybody, either in Liberia or abroad. In the absence of the inventory required by statute, it is difficult to say whether the legacies mentioned in the Will are available for distribution to the legatees. Also, in the absence of the inventory and the appraisers’ estimates, how is the value of the estate to be determined?

For several reasons it is necessary to know the value of the estate. The widow has asked for one third of all shares of stock; one third of all bank accounts; and one third of all of testator’s personal property. The question is, upon what basis would the one third be calculated, in the absence of an inventory to show what is the total, one third of which she elects to be granted to her as widow’s dower? How would the government tax fee, which is a percentage of the total value, be assessed at the close of the estate, without knowing what is the value of the estate?
It was argued that estates have been administered and closed without inventory. Whilst this might be true in the case of other estates, that does not mean that the failure to do so in the past is an excuse for violating the law in this case, especially where the widow’s petition for dower has focused the need for compliance with the statute requiring inventory and appraisement.

The first count of the respondents’ returns asks for the dismissal of the petition because of petitioners’ failure to pay accrued costs in the probate court, which is a stated requirement for the granting of certiorari. This requirement appears in the Civil Procedure Law, Rev. Code 1:16.23(3) and it reads, as follows:

“Payment of accrued costs, bonds. The petitioner shall pay all the accrued costs, and he may be required to give a bond, conditioned on paying the respondent such damages as he may sustain if the writ is dismissed”.

Petitioner’s counsel argued that accrued costs are only paid in cases where there is determination by judgment. He argued that certiorari is a remedy which must be sought before judgment and whilst the case is pending. He contended that before the case is determined there is no way of knowing what accrued costs will be, so that it would be impossible to know what should be the accrued costs to be paid.

This contention of the petitioners would seem to be reason-able and we are of the opinion that the Legislature must have meant that the payment of costs in certiorari proceedings should be left to the discretion of the Justice in Chambers to require such payment in keeping with the circumstances appearing in a particular case. We are of this opinion because we know that certiorari will not lie where judgment has been rendered in the case out of which the proceeding grows. Hearing of the case must always be in progress, and the writ is sought to correct alleged errors during the hearing. Could accrued costs at the end of the case be the same as that which might have accumulated up to the time that a stay order in certiorari stops the hearing?

This does not seem likely in all cases. Therefore, the payment of costs, as a prerequisite to granting the writ of certiorari, should be left to the granting Justice in Chambers to say whether costs in a given case should be paid by petitioner before he grants the alternative writ. This position is not only consistent with the law requiring that there must be pendency of a case before the writ of certiorari could be issued to intervene in a hearing before an inferior court, but it is also in harmony with the previous statute governing the granting of certiorari, as found in the 1956 Code of Laws. Here is what that previous law states:

“To obtain a writ (of certiorari) the petitioner shall be required by the Court or Justice to pay all the accrued costs…” Civil Procedure Law, Rev. Code 6:1201(c).

In other words, unless the Justice in Chambers or the Full Bench of the Supreme Court requires that costs should be paid as a condition for ordering a stay of the proceeding, the failure to pay such costs at the time of filing of the petition is not fatal to the issuance of the writ.

As far back as 1901, in the case West v. Republic, in which the appellee moved the Supreme Court to dismiss the appeal, and came before the Supreme Court alleging non-payment of costs in certiorari proceeding as the basis of his motion for the dismissal, the Supreme Court said:
“It (certiorari) is not in the nature of an appeal, nor in the nature of a writ of error; the writ of certiorari operates as a supersedeas as to further proceeding in the court below, which writ is peremptory and must be obeyed by the judge of the court below. It is therefore the opinion of this Court that the Act (Leg. Lib. 1894) respecting the payment of costs and issuing of notice in cases of appeal does not apply to writs of certiorari.” West v. Republic, [1901] LRSC 8; 1 LLR 386 (1901).
It is therefore our opinion that to require the payment of accrued costs as a condition upon which all writs of certiorari will be granted could not have been the intention of the Legislature, because that would not be in harmony with the law which commands that for certiorari to be granted, hearing of a case must still be in progress and the judgment must not have been rendered. Costs are generally assessed at the finality of a suit. Before finality of the case, it would be impossible to know what the total or accrued costs of some cases would be. It would therefore be impossible for the petitioner to know in every case what accrued costs to be paid when he petitions for the writ of certiorari.

Respondents also contended that the probate court’s second ruling on the widow’s petition for dower, rendered on the 19th of July, 1978, was a final ruling which terminated the issue of the widow’s election to take certain portions of the estate in lieu of what was devised and bequeathed to her in the Will. They have contended that the ruling being final, the petitioners should have appealed from said ruling and should not have sought to have it reviewed by certiorari proceeding.

There were two rulings on the widow’s petition for dower; one rendered in April 1978 and the other in July 1978 — four months later. The second ruling reversed the position taken in the first with respect to the petition, and was rendered after close of the April Term 1978, the term in which the first ruling was given. Could the judge reverse, rescind, or correct her April ruling on the widow’s petition after close of the April term?

The Probate Court for Montserrado County, in which the estate of the testator is now pending, is a monthly court which meets on the first Monday of every month, and the monthly term ends on the last working day of the particular month. According to law writers:

“All the judgments, decrees, or other orders of courts, however conclusive in their character, are under control of the court which pronounced them during the term at which they are rendered or entered of record, and may then be set aside, vacated, or modified by the court; but after the term has ended, unless proceedings to correct the errors alleged to have been made are taken before its close, they can only be corrected by writ of error or appeal, as may be allowed in a court which by law can reverse the decision.”

The general rule is that after the expiration of the term all final judgments, etc., pass beyond the control of the court unless steps be taken during the term to set aside, modify or correct them …” BLACK’S LAW DICTIONARY 1723.

Also with respect to the time when a ruling or judgment may be corrected by a court, it has been written by other law writers, as follows:

“The court which rendered a judgment may, on its own motion and without application by a party, amend it by correction of clerical error or mistake, more especially during the same term, but it cannot do so where the proposed amendment involves a review of the judgment or a substantial modification of it…

A judgment once entered must be corrected, if irregular or erroneous, by some proper proceeding for that purpose; it cannot be merely disregarded and the proper judgment entered anew. During the term at which the judgment was entered, the correction may be made by an order of the court upon a mere suggestion of the error. But after the term the amendment can only be made upon the presentation of a formal petition or motion, entitled and filed in the same action or proceedings…” 23 CYC., Judgments, § C(1) & (2), 876.

Respondents in certiorari have contended that the ruling on the widow’s petition, rendered on July 19, 1978, was final and that since it was in direct opposition to that rendered in April in respect of the same petition, we must have regard to the second as a correction of the first. Therefore, according to the authorities cited and quoted hereinabove, this correction should have been made within the term in which the ruling was rendered. In addition to the legal authorities, the facts and circumstances of the matter also mandate this holding since, according to the first ruling of April 1978, the application for proper accounting had not yet been heard and determined. This was the condition under which the widow’s petition for admeasurement of dower was not to be passed upon “until it is established that the funds asked for are still where they should be.” That is, until and unless the proper accounting had been determined, according to the court’s ruling of April 1978, there was no means of knowing whether the funds asked for by the widow “were still where they should be.”

The ruling of July 1978, upon which this certiorari proceed-ing has been brought, is in our opinion a nullity, because it could not correct the previous ruling of that court since it was made out of term time. Only a superior court could do that. Indeed, not only are we not in agreement with the respondents’ contention that the July ruling was final, but we are of the opinion that it was erroneous to have sought to correct in July a ruling on the widow’s petition for admeasurement of dower made four terms of court earlier. We feel that the second ruling in July 1978 is a proper ground for certiorari; and therefore, the peremptory writ should issue.

In the testator’s Will he has asked that his executor and executrixes be allowed to administer the estate without being required to file bonds, or give any security for the honest and proper performance of their duties because, as he claimed, he had confidence in them. Although the Rules of the Probate Court makes the filing of bond a requirement for the protection of the assets of the estate and to secure the legacies of the legatees against dishonest and improper practices, our present statute allows a testator the right to absolve executors from assuring their proper behavior by the filing of bonds. Nevertheless, it is the primary duty of the probate court, standing in the place of the decedent, to protect all estates – testate and intestate; and where it is shown during the administration of any estate that the executor or administrator acted in a manner to call into question the honesty of their behavior in the handling of the assets of an estate, it is the duty of the probate court to take immediate steps to protect the estate from wastage, dishonesty and any mal-practice which might adversely affect the interest of the legatees and beneficiaries.

The question of whether or not the widow has a legal right to petition the court for admeasurement of dower, in view of and whilst she retains under oath her position of executrix of the estate, as well as the question of whether or not she is entitled to an election of certain properties of the estate in lieu of the devises and bequeaths to her in the Will, are questions which must be determined later when the handling of the estate is resumed by the probate court. We shall therefore say nothing about these questions at this time. Moreover, we will not pass upon the constitutional issue of insolvency of estates raised in count eleven of the petitioners’ petition, because we could not do this in the absence of an inventory to show what is the value of the bank account, shares and other properties, one third of which the widow demands as her dower. One does not determine the solvency or insolvency of an estate simply by allegations made by a party.

In view of the foregoing, we are of opinion that the petition for certiorari should be and the same is hereby granted, and the peremptory writ is ordered issued. The Clerk of this Court is ordered to send a mandate down to the court below commanding the respondent judge to resume jurisdiction over the estate, and proceed to handle the same de novo, beginning with the requirement that the executor and executrixes file within two months of this date an inventory of all of the assets of the estate according to the requirements of the statute; that the respondent judge appoints two appraisers to value the estate in keeping with statute; and that the respondent judge regard as null and void and of no effect everything done in the previous handling of this estate without the inventory required by law. Costs of this proceeding will abide final determination. And it is hereby so ordered.

Certiorari granted.