Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara Super. Ct. No. 1188464, J. Wm. McLafferty, Judge.
James R. Nichols, Jr. for Objector and Appellant.
No appearance for Karin Mortensen Petitioner and Respondent.
GILBERT, P.J.
The Anti-Defamation League Foundation ("ADLF") appeals an order determining, among other things, entitlement to the estate of decedent Moses Burg. We affirm.
FACTS AND PROCEDURAL HISTORY
On February 27, 2006, Moses Burg died in Santa Barbara. He left no testamentary instruments disposing of his substantial estate. Karin Mortensen, his niece and the administrator of his estate, later declared that "based [up]on [her] 18 years of working with [her uncle] on financial affairs and on conversations [she] had with him, . . . he was profoundly uninterested in anything that happened after his death."
During his lifetime, Burg was involved with ADLF and the Jewish Foundation of Greater Santa Barbara. He served as an advisory board member to the ADLF and generously contributed funds to its programs. Mortensen observed her uncle's involvement with the ADLF and the Jewish Foundation firsthand and described the two institutions as forming "the substantial context" of her uncle's activities and life.
On December 5, 2005, Burg attended a luncheon with ADLF Director Julie Saltoun and others. Burg stated that he intended to make a monetary gift of $100,000 to the ADLF's $125 million endowment campaign. In response, the national office of the ADLF mailed Burg a letter dated December 8, 2005, stating in part: "To assist the Anti-Defamation League in fulfilling its important responsibilities and in consideration of the gifts of others, it is my expectation and intention to contribute the sum of $100,000 to the Anti-Defamation League Foundation and The Legacy Endowment Campaign (LEC). [¶] I hope to fulfill our $100,000 intention as follows: I anticipate naming the Anti-Defamation League Foundation as a beneficiary in the amount $100,000 in my will and once documented will forward to your attention the pertinent portion of my estate planning documents for your files." Burg executed the letter on December 27, 2005, and returned it to the ADLF New York office. He also agreed in writing to permit the ADLF to publish the amount of his gift in its publication. Burg did not execute a will or other estate planning documents, however, and died two months later.
A photocopy of the December 8, 2005, letter is attached to this opinion as an appendix.
A photocopy of the December 21, 2005, permission-to-publish letter is also attached as an appendix.
Saltoun later declared that she believed the $100,000 gift was "a done deal," and that the December 8, 2005, letter was "standard operating procedure for all such commitments [to] memorialize and symbolize the gift."
In early February, 2006, the Jewish Federation arranged for Burg to meet with an attorney to discuss a revocable trust to implement his donation to ADLF and also the Jewish Federation. The attorney drafted a revocable trust and mailed it to Burg. After his death, his niece found the unsigned trust instrument in his apartment.
The probate court held a hearing concerning the petition for entitlement, and it determined, among other things, that the two letters regarding the ADLF gift are not testamentary instruments.
ADLF appeals and contends that 1) Burg made a valid inter-vivos gift to ADLF, and 2) the gift is enforceable pursuant to the doctrine of promissory estoppel.
DISCUSSION
I.
ADLF argues that the elements of a valid gift – donative intent, delivery, and acceptance – exist here. (13 Witkin, Summary of Cal. Law (10th ed. 2005) Personal Property, §124, pp. 139-140.) It asserts that Burg symbolically delivered the $100,000 gift by his public declaration and delivery of the December 8, 2005, letter. (E.g., Braun v. Brown (1939) 14 Cal.2d 346, 354 [decedent's delivery of safe deposit key to donee a gift of its contents].) ADLF relies upon Hebrew University Association v. Nye (Conn. Super. Ct. 1966) 223 A.2d 397, concluding that decedent delivered title to a rare book collection by the public announcement of a gift accompanied by a document listing most of the rare books.
There are three requirements of a valid gift: 1) an intent on the part of the donor to make an unconditional gift; 2) actual or symbolic delivery, such as to relinquish all control by the donor; and 3) acceptance by the donee, except where it is presumed. (13 Witkin, Summary of California Law, supra, Personal Property, §124, p. 140.) As a general rule, the elements of a gift include "complete divestment of all control by the donee." (Burkle v. Burkle (2006) 141 Cal.App.4th 1029, 1038, fn. 6.)
The ADLF is correct that we independently interpret the documents here. "It is . . . solely a judicial function to interpret a written instrument unless the interpretation turns upon the credibility of extrinsic evidence." (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865.)
There is no valid gift of $100,000 to the ADLF because Burg did not fulfill his intention of leaving a gift by will. The December 8, 2005, letter states that Burg "anticipate[d] naming the Anti-Defamation League Foundation as a beneficiary in the amount of $100,000 in [his] will" and forwarding the will to the New York office of the ADLF. Burg did not execute a will or the trust instrument prepared by his attorney to make a gift to the Jewish Federation and the ADLF. Burg's niece declared that she found the unsigned trust instrument in Burg's apartment following his death.
Under the circumstances here, Hebrew University Association v. Nye, supra, 223 A.2d 397, is not persuasive. Burg declared his intent to make a gift to ADLF at a luncheon, but did not execute estate planning instruments to transfer the funds, although an attorney had prepared the instruments for his execution.
II.
ADLF also contends that Burg's pledge is enforceable as a contractual obligation by application of the doctrine of promissory estoppel. It points out that the mutual promises of subscribers to a charitable cause support each other and render a pledge enforceable. (Christian College v. Hendley (1874) 49 Cal. 347, 350.)
As a general rule, a promise of a charitable donation is a mere offer that may be withdrawn any time before acceptance. (Board of Home Missions, etc. v. Manley (1933) 129 Cal.App. 541, 543 [subscription is a mere offer until the beneficiary has accepted it or acted upon it].) Until such acceptance, the promisor generally has the right to revoke the subscription. (Ibid.) "The death of the subscriber before the acceptance of the subscription constitutes a revocation of the offer and the estate of the subscriber will not be liable on the subscription." (Id., at pp. 543-544.)
An exception exists where there are mutual promises by several individuals to contribute to the payment of an aggregate sum for the benefit of a charity. (Board of Home Missions, etc. v. Manley, supra, 129 Cal.App. 541, 544.) Under those circumstances, mutual promises may supply adequate consideration for enforcement of the promise. (Ibid.)
Here ADLF has not provided evidence that it performed any acts or incurred obligations in reliance upon Burg's pledge. It also has not provided evidence of specific mutual promises. Thus, "[t]here is no evidence . . . indicating that [ADLF} performed any acts or incurred any obligations or expense in reliance upon the payment of the said subscription of deceased prior to [his] death, or that other individuals concurred with [him] in contributing to the payment of an aggregate sum for the benefit of [ALDF]." (Board of Home Missions, etc. v. Manley, supra, 129 Cal.App. 541, 544.)
The order is affirmed. ADLF shall pay costs on appeal.
We concur: YEGAN, J., COFFEE, J.