Plummer v. Waskey

• Decision Date: 01 February 1977
• Docket Number: No. 67,67
• Parties: Risque W. PLUMMER, Individually and as Executor of the Estate of Nelle W. Murray v. A. Calvin WASKEY et al.
• Court: Court of Special Appeals of Maryland

Page 470

34 Md.App. 470

368 A.2d 478

Risque W. PLUMMER, Individually and as Executor of the Estate of Nelle W. Murray v. A. Calvin WASKEY et al.

No. 67.

Court of Special Appeals of Maryland.

Feb. 1, 1977.

Risque W. Plummer and Daniel B. Leonard, Baltimore, for appellant.

William A. Fisher, Jr., Baltimore, with whom were Semmes, Bowen & Semmes, Baltimore, on the brief, for appellees.

Argued before MOYLAN, DAVIDSON and MASON, JJ.

MOYLAN, Judge.

Nelle W. Murray died on August 13, 1975, at the Baltimore County General Hospital, where she had been taken two weeks earlier. She was 82 years of age. She had no children. The closest remaining relatives were second cousins.

On August 22, the appellant, Risque W. Plummer, who had been Mrs. Murray's lawyer for some 25 years, submitted for judicial probate a conformed carbon copy of a Last Will and Testament executed by the decedent on August 17, 1967, and a Codicil thereto dated July 22, 1973. In his petition for probate, Mr. Plummer stated that he had made a diligent search for the original of the aforesaid will and codicil thereto but was unable to find the original of either of said instruments. The conformed carbon copies were the copies that Mr. Plummer had retained in his files after he had prepared the aforesaid instruments. He prayed that he be appointed personal representative of the decedent's estate, since he was named as executor in the will.

In the will, Mrs. Murray made numerous bequests, including the bequest of her silverware and her diamond and pearl jewelry to the appellant's wife, Constance B. Plummer. She also provided that the rest, residue and remainder of her property and estate was to go to Mr. and Mrs. Plummer. In the codicil, Mrs. Murray revoked many of the cash bequests she had made in her aforesaid will. The bequests to Mr. and Mrs. Plummer remained the same.

A hearing was held on the matter in the Orphans' Court of Baltimore County, at which the appellees as next of kin of Mrs. Murray appeared without counsel. None of them objected to the probate of the will. The sole issue before the court was whether the legal presumption of revocation which arose from the fact that the original will and codicil thereto had been in Mrs. Murray's possession and could not be found at the time of her death was rebutted by the evidence. The two judges of the court who heard the case were divided as to whether the presumption had been overcome and, therefore, probate was denied. This is an appeal from that order of the Orphans' Court.

On appeal, the appellant argues that the legal presumption of revocation had been rebutted by the evidence. We proceed, therefore, to recount the evidence as presented at the hearing.

The appellant, Risque W. Plummer, Esquire, had been the decedent's attorney for approximately 25 years. He first represented her in connection with the settlement of the estate of her stepmother, whose will left the house at 7308 Liberty Road, in which Mrs. Murray was living at the time of her death, and its contents to Mrs. Murrary. During the next two decades, Mr. Plummer performed various other legal services for Mrs. Murray. He obtained a divorce for her from her husband, who had deserted her some 20 years earlier; to supplement her Social Security income, he legally invaded the principal of a trust estate established by her father; he drew numerous wills for her; he settled many small insurance claims. He also performed various personal services for the decedent, who had been deaf since childhood. (Everyone communicated with Mrs. Murray in writing; she, however, was able to speak.) He had a special telephone installed for her; he helped her get her Social Security; he had the assessment lowered on her house. Mr. Plummer testified that Mrs. Murray 'ran me ragged, so to speak, for 25 years, and I never refused her and always made myself available to her . . . (W)hen she got to the point where she couldn't get around too well I would go to her house and I have been there hundreds of times over 25 years . . .' He testified that since Mrs. Murray lived very frugally, he did not know that she had anything to compensate hin with, so he charged her 'very, very nominal' fees and in many instances none at all.

During the years, Mrs. Murray had a close relationship with both Mr. and Mrs. Plummer. She communicated with both of them on a regular basis, sending a card or a letter to them one, two or three times a week up until the time of her death. She would also call them on the phone frequently. Mrs. Murray always invited Mrs. Plummer to come with Mr. Plummer. Mrs. Plummer testified, however, that she did so only when Mrs. Murray really insisted and on special occasions like Christmas, Easter, Mrs. Murray's birthday, and several other times. She testified that she enjoyed a pleasant relationship with Mrs. Murray and that she was apparently the only person who could communicate orally with the decedent-Mrs. Murrary was able to read Mrs. Plummer's lips.

Mr. Plummer testified that over the years he had drawn numerous wills for Mrs. Murray. In each of them, Mrs. Murray named him as executor. In the first will that Mr. Plummer prepared, Mrs. Murray named him as one of three residuary legatees; in the second will, he was named as one of two residuary legatees; and in the third will, he was named as the sole residuary legatee. Mr. Plummer testified that as time passed, Mrs. Murray developed a fondness for Mrs. Plummer and, as a result, in subsequent wills both Mr. and Mrs. Plummer were named as residuary legatees.

Because Mrs. Murray had named him as one of her beneficiaries, Mr. Plummer purposely referred her to outside counsel after he drew each will to make sure that she understood what she was doing and to have outside counsel examine her regarding her competency. In order to execute the two wills Mr. Plummer drafted for Mrs. Murray in 1953 and the one in 1955, he referred her to C. Keating Bowie, Esquire, who had an office in the same building as Mr. Plummer. Mr. Bowie examined Mrs. Murray on each occasion to make sure that she understood the contents of the will, that she was not influenced in any way in making the bequests and that she was competent to execute the instrument.

A letter from Mrs. Murray to Mr. Plummer dated September 27, 1955, which Mr. Plummer had kept in his file, was introduced into evidence. In the letter Mrs. Murray stated that she did not want any 'unpleasantness from my various distant relatives' because she had mentioned Mr. Plummer in her will. She suggested that Mr. Plummer insert the following clause in the will:

'For the help my attorney & executor has given me on numerous occasions, knowing I was alone and handicapped by loss of hearing I am remembering him in this will. He had never in any way tried to influence me in making any will-He knew nothing whatever of my plans until I gave him lists.'

As to the wills Mr. Plummer drafted for Mrs. Murray in 1963, 1965 and 1967, he referred her to Richard H. James, Esquire, another attorney in the same office building (Mr. Bowie had moved to another office building). Mr. James followed the same procedure as Mr. Bowie. At the time of the execution of the codicil and July 22, 1973, Mr. Plummer prepared and Mrs. Murray signed a statement, witnessed by a Francis J. Fagan and Lucille M. Fagan, neighbors of Mrs. Murray's who had also witnessed the codicil, stating that the codicil expressed her wishes and that she fully understood it.

Mr. Plummer testified that he always gave the original of each instrument, including the will and codicil in question, to Mrs. Murray and kept a conformed carbon copy in his file. Mr. Plummer told Mrs. Murray to put the instrument in a safe place, such as her safe deposit box. He told her to destroy the prior will whenever she had a new will drawn. Mr. Plummer never asked Mrs. Murray, however, where she put a will, although he stated that Mrs. Murray preferred to keep all of her possessions around her, including articles which should have been in the safe deposit box.

Before they moved to Florida in April of 1975, Lucille Fagan and her husband had been Mrs. Murray's neighbors for approximately 25 years. Mrs. Fagan testified that she and her husband on many occasions took care of Mrs. Murray when she was ill or otherwise needed them. When asked what the relationship between Mrs. Murray and Mr. Plummer was over the course of the 25 years, Mrs. Fagan stated:

'(T)here never was anyone so attentive to a lonely old woman as Mr. Plummer. And I know this for a fact because I lived practically with Nelle. . . . (I)f Nelle's water came down her fireplace it was Mr. Plummer that she called. He-anytime, snow storm, she called him and she respected him. . . . (A)nytime that she needed anything she called Mr. Plummer.'

The relationship between Mrs. Murray and Mr. Plummer was such that Mrs. Murray gave Mr. Plummer a general power of attorney in an instrument dated July 24, 1972. Mr. Plummer filed the instrument with the Maryland National Bank, woodmoor Branch, where the testatrix had accounts and a safe deposit box. In his letter transmitting the power of attorney to the bank, he stated that it was to be used in case of an emergency.

The close and amicable relationship between Mrs. Murray and Mr. Plummer, however, changed shortly before her death. In the summer or fall of 1974, Mrs. Murray asked Mr. Plummer if he knew of a broker, since her broker had gone out of business, who could help her with stock transactions. Mr. Plummer suggested his son, Randolph (Randy), a registered broker with Kidder-Peabody & Company. Mrs. Murray made approximately five stock purchases through Randy from November 8, 1974, through February 26, 1975. In April of 1975, Mrs. Murray began writing to Mr. Plummer and Kidder-Peabody, however, complaining that she had not received one or two of these securities. In her letter to Mr. Plummer of May 16, 1975, she wrote, in...