Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County Ct. No. VPRVS003075. J. Michael Welch, Judge.
Law Office of Stephen A. Madoni and Stephen A. Madoni for Petitioner and Appellant.
Zumbrunn Law Corporation and Gregory L. Zumbrunn for Objector and Respondent.
OPINION
McKinster, Acting P.J.
Petitioner and appellant Bryan Vernon (Vernon) is the son of decedent Willie William Vernon (decedent). Vernon filed a petition to remove objector and respondent Darlene Neubauer as administrator of the estate. The probate court denied Vernon’s petition as an untimely will contest. Vernon appeals this determination. We will affirm.
FACTS AND PROCEDURAL HISTORY
The decedent died in April 2006. On May 30, 2006, Neubauer filed a petition to probate a holographic document, executed in January 2004, together with a statutory will executed on the same date, as the decedent’s will. Neubauer requested that letters testamentary be issued to her.
The holograph, in the form of a letter, stated: “Please keep this letter with the Will that I made just so the Probate court will have no doubt of my wishes. [¶] I have loved Darlene since we met many years ago, and she is the best friend anyone could have. She has never let me down. I want her to have all of my possessions or estate. I have no wife and my children are all grown. [¶] Darlene deserves much more than this and I hope she will be happy and have everything she wants one day. [¶] 1-21-04 [/s/] William Vernon.”
The decedent had executed a statutory will on the same date; the statutory will was signed by two witnesses. Both the holographic letter and the statutory will named Neubauer as the sole beneficiary.
In July 2006, Vernon filed a will contest, objecting to probate of the proposed will. Vernon’s will contest alleged that decedent had executed the purported will documents without proper testamentary intent, that decedent was incompetent at the time the documents were executed, and that the disposition was obtained by undue influence. Vernon also objected to the appointment of Neubauer as the personal representative; Vernon requested the appointment instead, based on his status as an intestate heir.
Vernon filed an amended will contest petition in August 2006, adding specific allegations to the objection on the ground of improper formalities: i.e., “the document purported to be the last will and testament of Decedent was not executed in the manner and form required by law, including but not limited to, the failure to have the statutorily required number of disinterested witnesses . . . .” He also added a petition to determine distribution rights, and amended his prayers for relief, including a request to deny probate, that he be appointed personal representative, and for distribution of the estate to him and his surviving siblings as intestate heirs.
In October 2006, the parties entered into a stipulation and order to appoint Neubauer the personal representative of the estate. The stipulation recited, in pertinent part: “1. The petition of DARLENE NEUBAUER to be appointed as Executor and personal representative to administer the estate shall be granted and the objections of Contestant, BRYAN VERNON, to the appointment of DARLENE NEUBAUER as personal representative of the estate are withdrawn, subject to the conditions set forth herein.
“2. Limited authority under the Independent Administration of Estates Act shall be granted to DARLENE NEUBAUER as personal representative.
“3. DARLENE NEUBAUER, as personal representative of the estate, shall not sell, transfer, dispose of, encumber, or otherwise take any action other than to preserve the estate without the written consent of counsel for Contestant.
“4. No bond shall be required . . . .”
The stipulation and order was signed by counsel for both parties and the probate judge.
The court issued an order on November 15, 2006, appointing Neubauer as executor. The record of actions for that date recites that Neubauer’s petition (i.e., for probate of the will) was granted, and she was appointed personal representative of the estate.
Then, in May 2007, after the admission to probate, Vernon filed a motion or petition to remove Neubauer as the executor, on the ground that the will probated was not properly executed, and was therefore invalid. Vernon had discovered that the two purported witnesses were not actually present at the execution of the statutory will. If the statutory will was invalid, Vernon argued, Neubauer had no right to be appointed executor.
Neubauer opposed the petition for removal on the ground that, although Vernon’s petition for removal challenged the validity of the statutory will, the petition did not challenge the validity of the holograph; she argued it was a codicil which had incorporated the statutory will by reference. In addition, Neubauer had proceeded diligently with the requirements of inventory and accounting, and was nearly ready to file a request for final distribution of the estate. Removal would delay the distribution.
Vernon responded that the holographic instrument also failed to meet the formalities of a will (i.e., it was a letter, executed without intent to create a present testamentary disposition), and that both will documents were therefore ineffectual. The court evidently requested additional briefing on the issue whether Vernon’s petition to remove the executor—in essence a postprobate contest to revoke the will—was timely under Probate Code section 8270. Vernon argued that the stipulation to appoint Neubauer as executor did not abandon, waive or dismiss his earlier challenge to the validity of the instrument(s). His preprobate will contest was timely, and it preserved his right to raise the same issues postprobate, upon newly discovered evidence.
Neubauer argued that the petition to remove her as executor was an untimely postprobate will contest. A petition to revoke a will after it has been admitted to probate must be brought within 120 days. (Prob. Code, § 8270, subd. (a).) As to the statutory will, Vernon claimed to have discovered a ground to challenge that will in February 2007, when he took the deposition of one of the will’s witnesses. The discovery of the problem with the statutory will, in February 2007, was within the 120-day time limit after November 15, 2006. But Vernon did not file his petition on that basis until May 2007, several months later.
Vernon rejoined that the stipulation to appoint Neubauer as executor did not in any way withdraw or waive any of the grounds stated in his original contest petition, including invalidity of the will instruments.
The probate court denied Vernon’s petition to remove Neubauer as executor, on the ground that the petition was an untimely postprobate will contest under Probate Code section 8270.
Vernon now appeals.
ANALYSIS
I. Standard of Review
The parties dispute the appropriate standard of review. Vernon argues that the matter involves construction of a statute, Probate Code section 8270, and our review is thus de novo. Neubauer, on the other hand, contends that the matter does not depend upon the construction of an ambiguous statute; to the contrary, Probate Code section 8270 is not ambiguous. Rather, the determination depends upon the resolution of disputed issues of fact, i.e., whether or not Vernon withdrew or intended to withdraw his original objections to probate of the will documents at the time of the stipulation. Thus, Neubauer argues, the appropriate standard of review is sufficiency of the evidence to support the trial court’s factual findings on the question of Vernon’s intent.
We conclude that the issues we face depend not only upon the determination of historical facts, but also the legal effect or meaning of those acts. Even if Probate Code section 8270 is not ambiguous, we do have an ambiguous writing—the stipulation—which requires interpretation. The question is thus a mixed issue of law and fact, with the issues of construction and interpretation predominating. “In reviewing a mixed question of law and fact, we defer to the express or implied factual findings of the trial court and determine the applicable legal principles de novo. The standard which applies to the third step of the analysis, applying the law to the facts, depends upon whether factual or legal issues predominate. Where, as in this case, the issue is predominately one of law, we review it de novo.” (Border Business Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1554, citing Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800-801.)
II. Substantial Evidence Supports the Trial Court’s Implied Finding That Vernon Intended to Waive the Grounds of His Initial Will Contest
Vernon filed a preprobate contest of the will in July 2006. The initial contest appeared to address the holograph as lacking in testamentary intent: “Decedent did not intend that the writing should take [e]ffect as Decedent’s last will, but executed the purported will simply for the purpose of generating a hypothetical example of what Decedent wanted to happen after he died.” Vernon further alleged that the document (presumably, the holograph) “was not executed in the manner and form required by law,” that “Decedent was not of sound and disposing mind or in any respect capable of making a will,” and that the will “was made as a direct result of the undue influence exercised by others . . . and the document is not, and never was, the will of Decedent.”
Vernon amended his preprobate will contest in August 2006, adding allegations that apparently referred to the statutory will: “the document purported to be the last will and testament of Decedent was not executed in the manner and form required by law, including but not limited to, the failure to have the statutorily required number of disinterested witnesses . . . .”
Then, in October 2006, the parties entered into the stipulation to appoint Neubauer as the personal representative of the estate. The critical provision was: “The petition of DARLENE NEUBAUER to be appointed as Executor and personal representative to administer the estate shall be granted and the objections of Contestant . . . to the appointment of [Neubauer] as personal representative of the estate are withdrawn” (italics added), subject to conditions that Neubauer’s authority to act would be limited, and that she could not transfer, sell, encumber or otherwise deal with the property, other than preserving the estate, without the consent of Vernon’s counsel.
Vernon argues that, by the words “the objections of Contestant . . . to the appointment of [Neubauer] as personal representative of the estate are withdrawn,” he nevertheless “never stipulated or intended to stipulate to waiving the defects he identified in the petition to probate the Decedent’s invalid will. Rather, [Vernon] stipulated to an appointment of [Neubauer] as personal representative of the estate so that things could get moving regarding Decedent’s assets, inventory, appraisals, and other necessary items.” Vernon points out that he did not expressly dismiss his will contest, and argues that he did not “intend to set aside the arguments set forth in his will contest.”
These “intentions” remained unexpressed, however, and were belied by Vernon’s actions.
In response to the stipulation, the trial court did not merely appoint a personal representative; it granted Neubauer’s petition for probate, thus admitting the will to probate. The admission of the will to probate effectively decided the issues raised in Vernon’s preprobate will contest adversely to him. If he believed that he had merely stipulated to Neubauer’s appointment as personal representative, without relinquishing any of the preprobate will contest grounds, then it was incumbent upon him to inform the court, and to oppose the admission of the will to probate. He did not do so.
In addition, the court looked to Vernon’s conduct in entering into a stipulation at all. The stipulation to appoint Neubauer as personal representative might, as Vernon argued, have been made merely for the convenience of having someone act. If so, however, it was unnecessary to stipulate to the withdrawal of all Vernon’s objections. The objections to Neubauer’s appointment consisted solely of the identical objections as those to the probate of the will.
In the absence of a valid will, the decedent would have died intestate, and Neubauer would have had last statutory priority to appointment as personal representative. (See Prob. Code, § 8461 [order of priority of appointment given to surviving spouses, children, grandchildren, other issue, parents, siblings, issue of siblings, grandparents, issue of grandparents, children of a predeceased spouse or domestic partner, other issue of a predeceased spouse or domestic partner, other next of kin, parents of a predeceased spouse or domestic partner, issue of parents of a predeceased spouse or domestic partner, conservator or guardian of the estate, public administrator, creditors, and lastly, any other person].) If either or both wills were valid, then Neubauer as the named executor had the right of appointment (Prob. Code, § 8420 [“The person named as executor in the decedent’s will has the right to appointment as personal representative”]); otherwise she had virtually no claim to act.
There were other possible or available grounds upon which to object to a personal representative, but none of them were applicable here. Probate Code section 8004 provides: “(a) If appointment of the personal representative is contested, the grounds of opposition may include a challenge to the competency of the personal representative or the right to appointment. . . .” Here, Vernon never contested Neubauer’s competency, but only her right to appointment as executor (i.e., the person so named in the will), which was dependent on the validity of the will.
Probate Code section 8402 provides that a person is not competent to act as personal representative on any of the following relevant grounds: “(1) The person is under the age of majority. [¶] (2) The person is subject to a conservatorship of the estate or is otherwise incapable of executing, or is otherwise unfit to execute, the duties of the office. [¶] (3) There are grounds for removal of the person from office under Section 8502 [i.e., waste, embezzlement, mismanagement, fraud, incapacity, inability to serve, neglect of duty, other causes].” Again, Vernon never alleged any incapacity, misfeasance, disqualification or other ground going to Neubauer’s capability of fulfilling her fiduciary duties; the sole grounds ever raised dealt exclusively with her lack of priority because of the failure of validity of the will naming her as executor.
The initial, preprobate objections to the will were substantively identical to the objections to Neubauer’s appointment as executor; the objections to Neubauer’s appointment as personal representative consisted of nothing else. Once the will was admitted to probate, the court had overruled Vernon’s objections on those grounds, and those questions were substantively determined against him. Yet, he did not object to the admission of the will to probate at the time.
When Vernon reopened the question of the will’s validity, through his petition to remove Neubauer as executor, he did so because of newly discovered evidence. He had obtained new testimony indicating that the statutory will was not properly witnessed: Contrary to the statutory requirements, both witnesses were not together and did not witness decedent sign the will in decedent’s presence and in the presence of each other. Instead, one of the witnesses was absent when the other witness signed the statutory will.
Vernon did not simply amend his contest petition. Instead, he initiated an entirely new motion. To all intents and purposes, the new motion to remove Neubauer as personal representative was an entirely new proceeding. In other words, Vernon did not behave as if the will had not been probated.
Moreover, at the hearing, Vernon’s counsel expressly acknowledged that at least some theories of the will contest would be time-barred:
“Your Honor, when the case was first filed, we filed it as an undue influence. Believing at the time that Ms. Neubauer unduly influenced the decedent. [¶] What happened was, later on, we came to realize that didn’t happen and we entered into the stipulation. [¶] We then took the deposition of one of the witnesses who said, ‘Hey, guess what? The other witness to the statutory will wasn’t present when it was signed.[’] So, as soon as I found that out and I got the transcript, I filed this motion. As soon as I found out, I did something about it. And that’s why I don’t think [Vernon] is time barred. . . . [¶] If this was, ‘Hey, I’m going back to the undue influence,’ I would agree with the Court, it’s time barred. But we’re not going back to that. We’re going back to say, ‘The will when it was signed was defective because [there were] not two witnesses present.’”
This colloquy substantiates a finding that, in making the stipulation to appoint Neubauer as the personal representative, Vernon had in fact intended to withdraw the substantive objections to the probate of the will at that time.
For one thing, the stipulation made no distinction, express or otherwise, as to which theories of contest—which “objections” to Neubauer’s appointment—were to be withdrawn. There was no limitation, in Vernon’s withdrawal of objections, to the ground of undue influence. If the ground of undue influence was withdrawn as an objection to Neubauer’s appointment as executor, as Vernon’s counsel admitted, then all the other grounds existing at that time were equally withdrawn. For another, counsel’s reliance on newly discovered evidence is an indication that the initial objections were intended to be withdrawn. The acquiescence in the admission of the will to probate was also an indication of Vernon’s intent.
Despite Vernon’s assertions that he harbored no intent to stipulate to waiving any of the defects in the wills submitted to probate, such secret or unexpressed intent was inconsistent with the words of the stipulation, the agreement to permit Neubauer to be appointed as personal representative, the admission of the will to probate, and Vernon’s subsequent conduct, both the filing of the motion to remove Neubauer as personal representative, which treated the motion as a new proceeding on a new ground, and the admission at the hearing that at least some grounds of contest were time-barred.
Substantial evidence thus supports the trial court’s finding that Vernon intended to withdraw the grounds of his preprobate will contest when he stipulated to Neubauer’s appointment as personal representative.
III. Under the Facts as Found, the Motion to Remove the Personal Representative, Construed as a Postprobate Will Contest, Was Time-barred
As Vernon points out in his reply brief, much of what this court is called upon to do here is to construe a writing—a statute, the stipulation, or the will documents—and to determine which legal principles apply to disputed facts or conflicting evidence. These are matters we review independently. (Ghirardo v. Antonioli, supra, 8 Cal.4th at p. 799; Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865-866; In re Microsoft I-V Cases (2006) 135 Cal.App.4th 706, 718 [statutory interpretation]; cf. People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107 Cal.App.4th 516, 520 [interpretation of a contract is subject to de novo review where the interpretation does not turn on the credibility of extrinsic evidence].)
A stipulation is an agreement; the stipulation here was reduced to writing. (See, e.g., Frankel v. Bd. of Dental Examiners (1996) 46 Cal.App.4th 534, 544 [stipulation, like other agreements, is governed by contract principles].) “The stipulation must be ‘“interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” . . . The intention of the parties must be first determined from the language of the contract itself. . . . However, where the language of the contract is ambiguous, it is the duty of the court to resolve the ambiguity by taking into account all the facts, circumstances and conditions surrounding the execution of the contract. . . .’ [Citations.] [¶] ‘That which is necessarily implied in the language of a contract is as much a part of it as that which is expressed.’ [Citations.] ‘[A] contract includes not only the promises set forth in express words, but, in addition, all such implied provisions as are indispensable to effectuate the intention of the parties and as arise from the language of the contract and the circumstances under which it was made . . . .’ [Citation.]” (Id. at pp. 544-545.)
Just as in other cases requiring construction of written language, we look first to the words of the stipulation. Vernon argues that “[t]he express purpose of the stipulation was to allow for the marshaling of assets to move forward while [Vernon] sought to reveal evidence of the improper completion or lack of compliance with the statutory requirements for the execution of a will.” To the contrary, however, there is no such expression in the stipulation. Such language is wholly absent from it. If Vernon had intended only to agree to that appointment as a matter of convenience, “so that things could get moving regarding Decedent’s assets, inventory, appraisals, and other necessary items,” then he could simply have done so. Although he claims that “the only thing [he] stipulated to was the appointment of [Neubauer] as executrix and nothing more,” the stipulation did not stop there: Vernon also expressly withdrew his objections to her appointment. That language must mean something. Those objections consisted of nothing other than the stated grounds for the will contest itself. The only question is whether Vernon should be taken at his word; we conclude that he should.
Vernon complains that “his will contest was never dismissed.” He did not have to dismiss it; it was adversely determined when the court admitted the will to probate. He did not protest the court’s minute order admitting the will to probate, which he certainly could and should have done had he believed the stipulation did not “intend[] to stipulate to waiving the defects he identified in the petition to probate the Decedent’s [assertedly] invalid will.”
As the court held in Estate of Horn (1990) 219 Cal.App.3d 67, “[t]he date on which the will is admitted to probate serves as the bright line for the commencement of the 120-day period within which a postprobate contest can be filed. [Citation.] This legislative determination reflects the intent that an earlier filed [preprobate] petition may not be heard after the will is admitted. To conclude otherwise would permit a virtually open-ended . . . period provided the contestant merely filed the petition before the will was admitted to probate, a result inconsistent with the legislative purposes we have described. Reasonably interpreted[, the preprobate will contest provisions] require[] not only that the will contest be filed ‘at any time before the hearing of the petition for probate,’ but also that the contestant take affirmative action to prevent the will from being admitted to probate if the contestant wants a trial on that petition.” (Id. at p. 72.)
Here, Vernon failed to take such affirmative action to prevent the probate of the submitted will. Accordingly, his new motion, to remove Neubauer as executor, was a postprobate will contest, and subject to the statutory 120-day limit.
The cases upon which Vernon relies to claim otherwise are inapposite. For example, Vernon cites Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509 (Ferraro), for the proposition that a stipulation limited to one purpose cannot be construed to cover other issues not essential to it. The issue in Ferraro was, however, completely different from that presented here. In Ferraro, the parties to a probate proceeding purported to stipulate among themselves to extinguish the rights of a nonparty. The court rejected that mode of proceeding: “For the order to have preclusive effect, however, it would have to appear that appellant’s cause of action, or an issue essential to it, had been tendered to the court, sitting in probate, and that the court, in that capacity, had adjudicated it on the merits.” (Id. at p. 545.) Contrary to the situation in Ferraro, the matters in issue here were tendered to the court, sitting in probate, and were adjudicated on the merits. In addition, the supposed adjudication in Ferraro was based solely on the stipulation; here, the adjudication of the issues on the merits was based not only on the stipulation appointing Neubauer as executor, but also on the court’s order admitting the will to probate. Ferraro has no applicability here.
Vernon also relies on In re Estate of Hoover (1934) 139 Cal.App. 753 (Hoover), but that case likewise provides him no support. In Hoover, the decedent’s granddaughter filed a preprobate will contest, but dismissed the contest before hearing, without prejudice. After the proposed will and codicils had been admitted to probate, she filed a postprobate petition to revoke the will and codicils, on substantially the same grounds as were alleged in the preprobate will contest. It was there alleged that the granddaughter was not entitled to file a postprobate will contest, because she had already been a party to a preprobate will contest. (Id. at p. 759; see former Prob. Code, § 380; Prob. Code, § 8270.) “‘When a will has been admitted to probate, any interested person, other than a party to a contest before probate . . . may . . . after such probate, contest the same or the validity of the will.’” (Hoover, at p.759, quoting former Prob. Code, § 380.) Probate Code section 8270, subdivision (a), now similarly provides that “[w]ithin 120 days after a will is admitted to probate, any interested person, other than a party to a will contest and other than a person who had actual notice of a will contest in time to have joined in the contest, may petition the court to revoke the probate of the will.” (Italics added.) As the court stated in Hoover, “Without question where the contest before probate has been ‘determined adversely’ it is the intent of [former] section 380 of the Probate Code to prevent another contest after probate. However, where, like in the case at bar, the contest before probate has been dismissed by the contestant before any trial of the issues of the contest . . . it does not preclude a contest after probate . . . .” (Hoover, at p.759.) Here, of course, contrary to Hoover, Vernon insists that he never did dismiss his preprobate will contest. Thus, when the will was admitted to probate, the preprobate contest was determined adversely to him. Hoover provides no support for Vernon’s maintenance of a postprobate will contest on the same grounds as the preprobate will contest, and certainly does not justify bringing such a postprobate will contest after the applicable time limit.
Indeed, if, as Vernon now claims, he never withdrew, dismissed, or intended to dismiss his preprobate will contest, then he is precluded under Probate Code section 8270 from bringing a postprobate will contest at all. The admission of the will to probate terminated his will contest on the merits of those claims, and he is excluded by the statute as a party who may bring a postprobate will contest.
Estate of Munfrey (1943) 61 Cal.App.2d 565 is similarly unhelpful to Vernon’s position. There, the contestant filed a timely postprobate petition to revoke probate of a proffered will. The probate court sustained a demurrer to the revocation petition; at the time of the ruling on the demurrer, the time limit to file a postprobate contest had passed. The court held that “a petition contesting the validity of a will may be amended after the time for filing a contest has elapsed so long as no new ground of contest is stated by the amendment.” (Id. at p. 569.) Here, by contrast, Vernon did not file an initially timely postprobate will contest, which he sought merely to amend after the time limit had passed. Rather, he first filed his petition to remove Neubauer as executor after the 120-day time limit had already elapsed.
Although Vernon strenuously urges that his new evidence demonstrates that the formal statutory will was invalid, and that the probate court is obliged to set aside an invalid will (Prob. Code, § 8272), he failed to bring a timely postprobate will contest petition to establish that claim.
The trial court properly denied Vernon’s motion to remove Neubauer as a time-barred petition to revoke probate of the will.
DISPOSITION
For the reasons stated, the court’s order denying the petition to remove Neubauer as executor of the estate is affirmed. Costs on appeal are awarded to objector and respondent Darlene Neubauer.
We concur: Richli, J., Miller, J.