Estate of Brandl

Filed 6/21/07 Estate of Brandl CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

Sandy Kay Mall appeals from the orders denying her petition to probate a holographic will of the decedent, Russell L. Brandl (Brandl), and granting a petition for letters of administration filed by the decedent's son, Robert L. Brandl, respondent. We affirm.

Factual and Procedural Background

Brandl died on December 4, 2005. On December 19, 2005, respondent filed a petition for letters of administration and authorization to administer under the Independent Administration of Estates Act. The petition alleged that Brandl had died intestate without a surviving spouse. It requested that respondent be appointed administrator of the estate.

On February 7, 2006, appellant filed objections to the petition. Appellant claimed that Brandl had willed his entire estate to her. Appellant filed a "Proof of Holographic Instrument" in which she declared that Brandl had handwritten and signed an attached instrument stating as follows: "I leave everything to [appellant] if she fucks and sucks me 1 million times before I die."

On February 7, 2006, appellant also filed a "Notice of Petition to Administer Estate of Russell L. Brandl."[1] The notice states that appellant has filed a petition to probate Brandl's will. But neither the superior court case file nor the record on appeal includes such a petition. The probate court, however, stated that appellant had "filed a Petition to Probate a Holographic Will," and that it had "seen a copy of that petition."

According to appellant's declaration under penalty of perjury, in September 1979 she and Brandl began a "relationship of dating and sleeping together" that "endured for the next 26 years." Brandl wrote the will between the time that they became engaged in 1986 and the time that her "rings were purchased in 1987." But appellant did not allege that they had married. During Christmas 1990, Brandl discussed his will with appellant. "He explained he has not been counting sessions of sex, but had been counting strokes, sucks, and even licks, and that [appellant] was almost at the million mark." In 2002, Brandl "informed [appellant] that [she] had fulfilled [her] 'one million strokes of love', and he fully expected [her] to present his will to the court." In May 2004 Brandl told appellant the "total number of strokes" was "one million three hundred thousand and something."

Respondent declared as follows: "I lived with my father from 1990 until he died in 2005, except for a period of three years when I lived with my mother-in-law in Ventura. My father and I had numerous discussions over the years regarding his relationship with [appellant]. He repeatedly stated that they were only friends and there was no emotional relationship with her. If they ever cohabited, it was never for more than a few months. He never said anything about making a will awarding his entire estate to her, if she provided certain sexual services."

Following a hearing, the probate court denied appellant's petition to probate Brandl's will. The court explained that it would not admit the will to probate "because the subject matter of this testamentary bequest is contrary to public policy. The will . . . makes the receipt of the bequest conditioned upon the delivery of sexual favors. . . .
[]  . . . [] . . . The evidence is clear that the sexual conduct required was not intended to be a part of public entertainment. [Appellant] was required to commit prostitution, as defined by Penal Code section 653.20(a), in order to inherit from the decedent." The court granted respondent's petition for letters of administration and appointed him administrator of the estate.

Discussion

"The basic rule in the interpretation and construction of any will is that the intention of the testator must be carried out as nearly as possible. [Citations.] In ascertaining the testator's intent, courts employ an objective test: the intention to be determined is that which is actually expressed in the language of the will. [Citations.]
' "The intention which an interpretation of a will seeks to ascertain is the testator's intention as expressed in the words of the will, not some undeclared intention which may have been in his [or her] mind." [Citation.]' [Citation.] []   Another fundamental rule of the interpretation and construction of wills requires that every word should be considered and given some effect, if possible. [Citation.] 'The words of a will are to receive an interpretation that will give every expression some effect, rather than one that will render any of the expressions inoperative . . . .' [Citation.] Moreover, the words used in a will must be given their ordinary, commonsense interpretation. [Citations.]" (Estate of Simoncini  (1991) 229 Cal.App.3d 881, 888-889.)

"A reviewing court may exercise its independent judgment in interpreting an instrument provided that extrinsic evidence regarding interpretation is not conflicting. [Citation.] 'The reviewing court has the duty to independently interpret the will when . . . the credibility of extrinsic evidence or the resolution of a conflict in the evidence' is not in issue. [Citation.] Thus, the reviewing court must exercise independent judgment to interpret a will where . . . conflicting inferences may be drawn from uncontroverted evidence. [Citations.]" (Estate of Guidotti (2001) 90 Cal.App.4th 1403, 1406.)

The record contains no conflicting extrinsic evidence concerning Brandl's intent when he wrote the will. Accordingly, we exercise our independent review in ascertaining that intent. The language of the will makes it clear that the devise to appellant was subject to a condition precedent: that she perform a specified quantity of sexual services for him prior to his death. " '[I]f the language of the will shows that testator intended to create an estate upon condition precedent, effect will be given thereto.' [Citation.] Where the condition in a will is specific, and it must be performed before an interest vests, it is a condition precedent. [Citations.] . . . [] . . . Where a condition precedent upon which property had been devised or bequeathed to a person must be fulfilled within a prescribed time, the gift fails if the condition is not performed as required. [Citations.]" (In re Alpers' Estate (1967) 251 Cal.App.2d 40, 46.)

In view of the condition precedent requiring appellant to perform sexual services, does the instrument signed by Brandl constitute a valid will? This is a legal question subject to our independent review. (See Estate of Wong (1995) 40 Cal.App.4th 1198, 1204.)

"[A] testator may dispose of his property on whatever condition he wishes to impose, so long as the condition is not forbidden by law or opposed to public policy. [Citation.]." (In re Alpers' Estate, supra, 251 Cal.App.2d at p. 45.) Pursuant to the reasoning of Marvin v. Marvin (1976) 18 Cal.3d 660, the condition precedent in the instant case is both unlawful and opposed to public policy.

In Marvin our Supreme Court concluded: "[A] contract between nonmarital partners, even if expressly made in contemplation of a common living arrangement, is invalid only if sexual acts form an inseparable part of the consideration for the agreement. In sum, a court will not enforce a contract for the pooling of property and earnings if it is explicitly and inseparably based upon services as a paramour." (Marvin v. Marvin, supra, 18 Cal.3d at p. 672.) The Supreme Court reasoned that nonmarital partners "cannot lawfully contract to pay for the performance of sexual services, for such a contract is, in essence, an agreement for prostitution and unlawful for that reason." (Id., at p. 674.) On the other hand, "[s]o long as the agreement does not rest upon illicit meretricious consideration, the parties may order their economic affairs as they choose, and no policy precludes the courts from enforcing such agreements." (Ibid.) 

Here, the condition precedent to Brandl's devise of his estate to appellant was "explicitly and inseparably based upon services as a paramour." (Marvin v. Marvin, supra,  18 Cal.3d at p. 672.) The condition precedent required appellant to prostitute herself. Penal Code section 647, subdivision (b), defines "prostitution" as including "any lewd act between persons for money or other consideration." Penal Code section 653.20, subdivision (a), provides: " 'Commit prostitution' means to engage in sexual conduct for money or other consideration, but does not include sexual conduct engaged in as a part of any stage performance, play, or other entertainment open to the public." As the probate court noted, "[t]he evidence is clear that the sexual conduct required was not intended to be a part of public entertainment."

Because the condition precedent is both unlawful and opposed to public policy, the devise of Brandl's estate to appellant is void. "If a condition precedent requires the performance of an act wrong of itself, the instrument containing it is so far void, and the right cannot exist." (Civ. Code,  709.)

Appellant argues that we should disregard the condition precedent, "leaving in the will only the words of gift: 'I leave everything to [appellant].' " Appellant's "interpretation of the Will would violate the principle that the words of a will must be interpreted so as to give every expression some effect, rather than in a way that will render other language of the will inoperative. . . . Appellant's interpretation . . . would require us either to ignore specific language in the Will, or actually to rewrite it so as to render it entirely inoperative. This is not the function of this court. (Estate of Keller [(1955) 134 Cal.App.2d 232, 236] ['Courts are not invested under the guise of construction with the privilege of rewriting a testator's will'].)" (Estate of Simoncini, supra, 229 Cal.App.3d at p. 890.)

Disposition

The probate court's orders are affirmed. Respondent shall recover his costs on appeal.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

Kent Kellegrew, Judge

Superior Court County of Ventura

______________________________

Alfred R. Keep, for Appellant.

Taylor, McCord, Praver & Cherry, Patrick G. Cherry. Susan D. Siple, for Respondent.

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[1] This document is not included in the record on appeal. Pursuant to Evidence Code sections 452, subdivision (d), and 459, we take judicial notice of the superior court file, case number P079543, which contains the document.