Figgins v. Cochrane

MOYLAN, J. The appellant, Diane Marie Figgins, takes this appeal from the decision of Judge G. Edward Dwyer, Jr., in the Circuit Court for Frederick County 1) to impose a constructive trust upon what had been her late Father’s family home in Ijamsville, Maryland and 2) to order the appellant, as constructive trustee, or some successor trustee to convey the property to the Personal Representative of the Father’s estate. Robert James Cochrane, Jr. (the “Father”) died on November 10, 2004, at 72 years of age. His total probate estate was valued at $740,103.55. $630,000.00 of that value was in his family residence, which was the Father’s only real property. At the time of his death, the Father had four adult children: 1) Robert James Cochrane, III, 54 years of age; 2) William Andrew Cochrane, who was appointed as the Personal Representative of his Father’s estate and who is the appellee in this case, 50 years of age; 3) Donna Lynn Giarth, 48 years of age; and 4) the appellant, 45 years of age.

On May 26, 2004, five and one-half months before his death, the Father had executed a Power of Attorney which named the appellant as his attorney-in-fact. The Father had executed his Last Will and Testament on November 21, 2001. He added a Codicil to that Last Will and Testament on September 16, 2004, just two months before his death. On November 8, 2004, two days before her Father’s death, the appellant, utilizing the Power of Attorney, conveyed the family residence from her Father to herself, individually, for no consideration.

On February 14, 2005, the appellee, in his capacity as Personal Representative of the Estate, filed a Complaint, in which he requested that a constructive trust be imposed on ⁴ the real property. Following a three-day trial that concluded on April 6, 2006, Judge Dwyer ruled that a constructive trust would be imposed and that a trustee would be appointed to convey the property to the appellee. In this appeal from that decision, the appellant raises several questions, which we have recast as follows: 1. Did Judge Dwyer erroneously rule that the existence of a confidential relationship between the appellant and her Father shifted to her the burden of establishing by clear and convincing evidence that there was no abuse of confidence and that the conveyance of the property was valid? 2.

Did Judge Dwyer erroneously rule that the exercise of the Power of Attorney violated the gift provision of the Power of Attorney? and 3. Did Judge Dwyer erroneously refuse to admit the testimony of the late Father’s lawyer pursuant to Maryland Rule 5 — 803(b)(3), the so-called state of mind exception to the Rule Against Hearsay? The Appellant As Primary Caregiver Except for a period of two or three years, the appellant lived with her parents all of her life. That was true even after she married and even after she and her husband had two daughters and ultimately a granddaughter.

The entire household moved into the Ijamsville residence in 1998, at the time of the Father’s retirement. After redoing what had been an unfinished basement, the appellant and her husband lived in what amounted to an independent apartment in the basement. Their daughters and granddaughter lived on the second floor. The Father, who was confined to a wheelchair, and the mother lived on the ground floor.

The Father had been operated on for lung cancer in 2000 and was wheelchair-bound after that. The mother assumed primary responsibility for his care until her own health began to deteriorate badly in the Spring of 2004. The mother died of cancer on August 29, 2004. In the Spring of 2004, the appellant assumed the responsibility for the care of both of her parents.

Until her Father’s ⁵ death on November 10, 2004, she took care of him and the house, fed him and took him out for lunches and rides, administered his medicines, did the laundry, and, after he began receiving hospice help at home, worked closely with his nurses. She took her Father to his doctors’ appointments and to church every day. She met with her Father on a daily basis to review the mail and to pay the incoming bills. At the time of her Father’s death, therefore, the appellant had been his primary caregiver for approximately seven months.

The Codicil of September 16, 2004 The Father and the mother had had, since 1996, reciprocal wills in which each left the bulk of his or her estate to the other. He executed a subsequent Last Will and Testament on November 12, 2001. Her ultimate Last Will and Testament was executed on May 13, 2004. Following his wife’s death on August 29, 2004, the Father, on September 16, 2004, executed a Codicil to his Last Will and Testament, in which he replaced what had been Item 6, dealing with his specific bequests.

The Codicil’s new Item 6 recognized the appellant’s unique connection with the family residence. I hereby give any household furniture, including any dining room, living room or family room furniture to Diane Marie Figgins. The Codicil then recognized the financial contribution that the appellant and her husband had made to the improvement of the family residence over the years. I hereby direct that my personal representative hire a certified appraiser to determine the value added to my residence by the improvements made in the basement.

An amount equal to the value added to my residence by the improvements made in the basement shall be paid to Diane Marie Figgins. The appraisal must be done withfin] 90 days from my death. (Emphasis supplied). The Codicil again recognized the appellant’s unique connection with the family residence by giving her 1) the exclusive ⁶ right of occupancy for three years and 2) the exclusive right to purchase the property for 120 days after the expiration of that three-year right of occupancy.

I hereby bequeath and give the exclusive right to occupy any real property owned by me at the time of my death to Diane Marie Figgins for a period of three (3) years. I hereby bequeath and give Diane Marie Figgins the exclusive right to purchase any real property owned by me at the time of my death at any time until a period of not less than 120 days after any exclusive right to occupy expires for the fair market value of the property. (Emphasis supplied). Once those special provisions had been made for the appellant, however, the rest and residue of the estate was given to all four of the children in equal shares.

I hereby bequeath and give, subject to the right to purchase my real property set forth below, the rest and residue of my estate to my children, Robert James Cochrane, III, William Andrew Cochrane, Donna Lynne Giarth and Diane Marie Figgins in as equal shares as may be possible. If any of my children, other than Robert James Cochrane, III, do not survive me, then that child’s share shall be divided among his or her surviving issue. If that child does not have surviving issue the gift will be divided between that child’s surviving siblings. If Robert James Cochrane III does not survive me, then his share shall be divided by his surviving siblings.

If there is any dispute as to any division of property, the dispute shall be resolved in the sole and absolute discretion of my personal representative. (Emphasis supplied). The Meeting of October 26, 2004 On October 26, 2004, the appellant and her Father had an appointment with the Father’s attorney, Scott C. Borison, Esq. It was Mr. Borison who testified as to that meeting.

The ⁷ testimony is very sketchy and vague as to precisely what was said and done in the course of that meeting. It is, however, that meeting on which the appellant relies for the heart of her defense against the claim of the Personal Representative. When, on the earlier occasion of September 16, 2004, the Father had met with Mr. Borison in order to execute the Codicil to his Last Will and Testament, the Father asked what the tax implications might be if he refinanced his house in order to make a gift to the appellant. There was no further testimony as to what Mr. Borison’s answer, if any, was to that inquiry.

There was no mention, moreover, of in what amount such a gift to the appellant might have been. This brief testimonial snippet would suggest that the Father, as of September 16, was at least curious about the possibility of an equity loan and a gift but expressed no firm intention in that regard. [ H]e asked questions about if he refinanced and made a gift to Diane what the tax implications would be. Q. Did he specify anything else about the gift? Did he say what type of gift he was going to make to them?

A. It was my understanding he was going to take the equity out of the house and give her a gift. (Emphasis supplied). On October 26, six weeks after the execution of the Codicil, the appellant and her Father returned to Mr. Borison’s office. “He was in a wheelchair at that point, and I think she pushed him into the room.” Although, on hearsay grounds, Mr. Borison was not permitted to testify as to the Father’s expressed intentions, the following proffer was made by appellant’s counsel. The proffer is that Mr. Borison will say that Mr. Cochrane indicated that the loan didn’t go through and that he wanted to transfer the property instead directly to his daughter.

In any event, Mr. Borison prepared a deed conveying the Father’s residence from the Father to the appellant. It was not done that day because Mr. Borison needed a copy of the former deed to the property. Although on the earlier occasion ⁸ of September 16, 2004, Mr. Borison had been able to prepare the Codicil while the Father was in his office, he and the Father did not discuss changing the Codicil at the meeting of October 26, 2004. Q In your October meeting with Mr. Cochrane, did you discuss redoing his September 2004 codicil?

A No. Q Did you discuss redoing his prior will? A No. Q. Did you discuss any terms of the codicil in that October 2004 meeting? A Not that I specifically recall. (Emphasis supplied).

November 8, 2004 was agreed upon as the date on which the Father would return to Mr. Borison’s office and execute the deed, were he so inclined. The Deed of November 8, 2004 That November 8 appointment was never kept. The Father had been under hospice care from October 14, 2004 until his death. He was on oxygen on a daily basis.

As of November 3, he did not even know his son, the appellee. On that day he lapsed into a coma from which he never recovered. On the day of November 8, the appellee was present with the appellant at their Father’s bedside. The appellee described how the appellant took a break from the bedside vigil because “she needed to do a hardcore grocery shopping.” It was in the course of that break that she went to Mr. Borison’s office and, utilizing the Power of Attorney, signed the deed conveying the house to herself.

The appellant, as soon as the deed was signed and notarized, went immediately to the Record Office and had it recorded. She never mentioned to her brother that she had taken either of these actions. The appellee only learned about the deed when the appellant mailed him a copy of it sometime in late December. When he, in February, asked the appellant why she had ⁹ signed the deed of the house to herself, her reply was that she “deserved it.” When pressed to “do what was right” by her parents’ wishes, the appellant replied, “We will let a judge settle this.” Two Distinct Appellate Hurdles A judge, of course, did “settle this,” and it is that decision of the judge now under appellate review.

Although presented to us in an almost inextricably intertwined fashion, there are actually two very distinct legal issues that we must address. The appellant has two hurdles to overcome, the failure to clear either of which will be disqualifying. There is the Power of Attorney issue and there is the confidential relationship issue. They may overlap at times, but they are not the same.

The Personal Representative seeks to have a constructive trust imposed on his late Father’s real property to the end that it be transferred back to the Father’s estate. The appellant opposes that proposed course of action on the ground that the deed of November 8, 2004, transferring the property from her Father to herself was valid. In examining the validity of the deed, we must first identify the grantor and then ask whether that grantor had the authority to make the deed. In this case, of course, the grantor was not the Father.

He was in a coma from which he would never recover. The grantor was the appellant, acting ostensibly on her Father’s behalf under her Power of Attorney from him. The stark reality which the appellant cannot ignore is that she herself, and not her Father, was the grantor. The legal question, therefore, becomes that of whether the appellant, given both the authority and the limitations on that authority imposed by the Power of Attorney, acted properly in signing that deed on that occasion under those circumstances.

That issue is not necessarily dependent on what the hypothetical desire of the Father might have been at that particular moment. An exercise of an ostensible Power of Attorney could be ultra vires, even if, coincidentally, it happened to be in full compliance with the wishes of the person who had ¹⁰ conferred the Power of Attorney. Conversely, an exercise of a Power of Attorney, in the best interest of a person granting it, could be completely valid, even if, coincidentally, it was against the immediate wishes of the person who had granted the Power. The two considerations are not identical.

The appellant nonetheless attempts to slide almost imperceptibly from the first consideration into the second as if they were indistinguishable. She wants to have the deed evaluated as if it were her Father’s action and not her own. She actually disclaims having acted pursuant to the Power of Attorney, notwithstanding the fact that her signature on the deed expressly indicated that she was acting in that capacity. In her testimony at trial, the appellant denied ever having read the Power of Attorney.

She professed no knowledge of her duties or responsibilities under that authority. Indeed, Judge Dwyer made a specific finding of fact in this regard. Now Mrs. Figgins testified, as I recall, certainly never up to the exercise of the power of attorney did she read the power of attorney. I believe she’s testified she still hasn’t read it.

So basically she never really got to reading the power of attorney. But certainly she hadn’t read it up to the time that she signed the deed and I find that. (Emphasis supplied). In her appellate brief, the appellant affirmatively disclaimed ever exercising any discretion under her Power of Attorney.

She rather claimed that she was nothing more than a nonthinking amanuensis who was simply randomly present to lift the pen, as she might just as readily have been even if no Power of Attorney had ever existed or if she had simply been the lawyer’s secretary. In her brief, the appellant even professes to have signed the deed not at her Father’s request, but at Mr. Borison’s request because “his client Mr. Cochrane could not do so himself.” Under the appellant’s analysis, the Power of Attorney would actually become irrelevant. The appellant seeks to have the deed of November 8, 2004, evaluated as if the Father himself had been the actual literal grantor and as if the appellant had ¹¹ simply helped him lift his pen. The legal issue of the scope of the appellant’s authority under the Power of Attorney, however, cannot be so adroitly finessed.

The Father was not the grantor on the deed. The Father (whatever his intentions a week or two beforehand might arguably have been) did not on November 8, 2004, execute the deed of his property to the appellant. The appellant herself made that decision and took that action, ostensibly under the authority of the Power of Attorney. We will, therefore, address the question of whether the Power of Attorney actually conferred such authority upon her.

The existence of a confidential relationship between the appellant and her Father, along with the legal consequences of such a relationship, is both a distinct additional issue and a critical issue. Even if, arguendo, the appellant, in signing the deed, had been doing nothing more than carrying out her Father’s wishes and even if, arguendo, the Power of Attorney had authorized her to do just that, there is still the unavoidable issue of whether the Father was at that time under the controlling influence of the confidential relationship. The Father’s wishes at that critical juncture, after all, may themselves have been nothing more than the forbidden fruit of a confidential relationship. The invalidating effect of a confidential relationship would be precisely the same even if the Father had been conscious on November 8, 2004, and had signed the deed himself.

The effect of a confidential relationship in this case would be the same regardless of whether a Power of Attorney had existed or not. It would be the same regardless of whether the appellant had signed the deed or the Father had signed the deed for himself. It is, in and of itself, a dispositive issue. The Confidential Relationship Analysis We shall first address the issue of a confidential relationship.

The introductory paragraphs of the Power of Attorney expressly assert that “all powers ... will be exercised only in a fiduciary capacity.” At the trial before Judge Dwyer, counsel for the appellant conceded that his client had ¹² been in a confidential relationship with her Father in the months immediately preceding his death. Although appellant’s trial counsel was not appellant’s appellate counsel, the appellant’s brief acknowledges, albeit somewhat grudgingly, that a confidential relationship did, indeed, exist. Counsel for the Appellant appeared to concede during closing arguments that there was a confidential relationship between the Decedent and Diane Figgins____ ... It does not appear to be contested'that Diane Figgins and Mr. Cochrane, her father, had a confidential relationship.

A careful reading of Appellant’s closing arguments fails to reveal an outright stipulation that there was a confidential relationship, but it was not argued by Appellant’s counsel that there was no confidential relationship and his arguments appear to be based on the assumption that there was a confidential relationship. (Emphasis supplied). Accordingly, Judge Dwyer found, as a mixed matter of fact and law, that there was such a confidential relationship and that it shifted the burden to the appellant to show that the transfer of real property was valid. I will also determine that there’s been conceded that there is a confidential relationship with Mrs. Figgins and with Mr. Cochrane, and therefore the burden shifts to her to show the reasonableness of a transfer for, basically, no value. [T]hat burden shifts to her by clear and convincing evidence and she has to show the validity of that transfer and in no manner has she met that burden.

(Emphasis supplied). In Mattingly v. Mattingly, 92 Md.App. 248, 263 , 607 A.2d 575 (1992), Judge Motz wrote for this Court in describing the very heavy burden cast upon the dominant party in a confidential relationship to overcome the presumptive invalidity of an ostensibly voluntary transaction. In a suit in equity, if a plaintiff establishes the existence of a confidential relationship, the burden shifts to the defendant to establish that the plaintiffs actions were “free, ¹³ voluntary and unbiased.” Thus, when a confidential relationship is established, and “the party occupying the position of dominion, ” “receives a benefit” from the transaction, there is a presumption against its validity, placing upon the beneficiary the burden of establishing by clear and convincing evidence that there has been no abuse of confidence, and that he “acted in good faith, and that the act by which [he] benefitted was the free, voluntary, and independent act of the other party to the relationship.” (Emphasis supplied). See also Wimmer v. Wimmer, 287 Md. 663, 669 , 414 A.2d 1254 (1980); Wenger, Admx. v. Rosinsky, 232 Md. 43, 49 , 192 A.2d 82 (1963); Mullan v. Mullan, 222 Md. 503, 506 , 161 A.2d 693 (1960).

In Treffinger v. Sterling, 269 Md. 356, 361 , 305 A.2d 829 (1973), the Court of Appeals listed some of the factors that should be considered in deciding whether a confidential relationship exists between a parent and an adult child. “Among the factors to be examined in determining whether this relationship has come into being are the parent’s advanced age, his physical debility, his mental feebleness, and his dependence on his child. None of these factors is necessarily conclusive and each should be given that weight which is warranted by the circumstances then present. Normally it is the minor child who relies heavily upon his parent for care and protection or for guidance in business affairs so that a confidential relationship exists between them with the duties running from the adult to the minor. It is only when, as a result of debility or feebleness, a parent becomes dependent on his child for aid and counsel, that a confidential relationship is re-established but with the duties reversed in the latter case and with the burden of establishing the fairness of the transaction cast upon the child. ” (Emphasis supplied).

See also Frain v. Perry, 92 Md.App. 605, 611 , 609 A.2d 379 (1992) (“The issue of confidential/dependent relationship normally arises in a parent-child sitúa ¹⁴ tion____[A]ge, debility and dependence are important considerations.”). The appellant views much too narrowly the implications of a finding of a confidential relationship. Even granting her factual predicate as to her Father’s wishes as of October 26, 2004, that would still have represented a dramatic change from his wishes as expressed in the Codicil of September 16, 2004. It is that change itself that may have been the forbidden fruit of the confidential relationship.

The rest is only detail. The appellant protests that her conveyance of the real property to herself “was in accordance with the final wishes” of her Father. She ignores the antecedent implication that her Father’s “final wishes” may themselves have been the forbidden fruit of the confidential relationship. The appellant protests that the conveyance of the property was simply the logical alternative when the Father’s effort to procure an equity loan failed.

Again, she ignores the antecedent implication that the desire to obtain the equity loan in order to make a gift to her may itself have been the forbidden fruit of the confidential relationship. A lawyer’s advice as to how best to implement the Father’s wishes does not necessarily abrogate the presumptively improper provenance of those wishes. The finding of Judge Dwyer that there was a confidential relationship is unassailable. That relationship created, as a matter of law, the presumption that any largesse exercised by the Father toward the appellant — be it by deed of property or by gift from an equity loan — was improperly induced by the relationship, whatever the modality of the transfer might turn out to be.

The burden was cast upon the appellant to rebut that invalidating presumption. Judge Dwyer found that “in no manner has she met that burden.” Judge Dwyer was simply not persuaded, and there was evidence to support that non-persuasion. That there might also have been some evidence in the case pointing in the other direction is beside the point. It was clearly a question of fact for the fact finder. ¹⁵ Judge Dwyer’s conclusion in that regard cannot, therefore, be said to have been clearly erroneous.

Power of Attorney Analysis Judge Dwyer’s ruling with respect to the confidential relationship is, in and of itself, dispositive of the appeal. His very thorough findings and rulings with respect to the appellant’s abuse of the Power of Attorney, however, furnishes an independent and alternative basis for affirming the court’s verdict. As a sound alternative basis for our affirming the court below, it is deserving of our consideration. On May 26, 2004, the Father executed a broad 21-page Power of Attorney to the appellant, appointing her as his Attorney-in-Fact.

Of pertinence to the issue before us — the gift by deed of his residence to her — is the last paragraph of the preamble. All powers granted in this Power are granted with the understanding that they will be used for m y benefit and on my behalf and will be exercised only in a fiduciary capacity. (Emphasis supplied). In examining the authority granted to the appellant by the Power of Attorney, Judge Dwyer first recited that provision in the preamble that all powers “are granted with the understanding that they will be used for my benefit and on my behalf.” He then looked to Article One, dealing with general powers, and focused in on what precisely could be done with respect to real property.

Subsection 1.1(b) listed the authorized transactions. (b) Sell, exchange, convey with or without covenants, quitclaim, release, surrender, mortgage, encumber, partition, consent to partitioning, subdivide, apply for zoning, or other governmental permits, plat or consent to platting, develop, grant options concerning, lease or sublet, or otherwise dispose of any estate or interest in real property or a right incident to real property, including but limited to remainder and life estate interests. ¹⁶ That express grant of authority does not convey the power to make a gift of the real property. Judge Dwyer ruled that the making of the deed in this case was not authorized by that general power. [ T]he power of attorney begins with all powers are granted •with the understanding that they -will be used for my benefit, on my behalf, and will be only exercised in a fiduciary capacity. The power to convey this real estate I find is not included in 1-1 the real property transactions because that gives the attorney in fact all the powers listed in this ... to transfer, sell, exchange, convey.

Nowhere does it give the power to gift real property. (Emphasis supplied). The decision of the Court of Appeals in King v. Bankerd, 303 Md. 98 , 492 A.2d 608 (1985), stands for the principle that the general power to “convey, grant, bargain and/or sell” does not include the power to make a gift of the real property. The Court of Appeals, 303 Md. at 102 , 492 A.2d 608 , posed the precise question then before it.

The single issue presented in this case is whether a power of attorney authorizing the agent to “convey, grant, bargain and/or sell” the principal’s property authorizes the agent to make a gratuitous transfer of that property. (Emphasis supplied). The plaintiff, and theretofore absentee landowner, in that case charged the defendant, who had been given a broad power of attorney by the landowner, with a breach of trust and breach of fiduciary duty for having made a gratuitous gift of the property to the absentee’s wife, believing that the missing husband might be dead. Judge Cole’s analysis for the Court of Appeals began with the general proposition that powers under a Power of Attorney are strictly constructed.

As Chief Judge Murphy observed for this Court in Klein v. Weiss, 284 Md. 36, 61 , 395 A.2d 126, 140 (1978), one “well settled” rule is that powers of attorney are “strictly construed as a general rule and [are] held to grant only those powers which are clearly delineatedf ]” ¹⁷ 303 Md. at 105 , 492 A.2d 608 (emphasis supplied). Judge Cole’s opinion continued: Another accepted rule of construction is to discount or disregard, as meaningless verbiage, all-embracing expressions found in powers of attorney. Restatement, supra, § 34 comment h. Because powers of attorney are ordinarily very carefully drafted and scrutinized, courts give the terms used a technical rather than a popular meaning. 303 Md. at 106 , 492 A.2d 608 (emphasis supplied).

The Court of Appeals pointed out that the general power to convey real property does not, absent a special grant of authority in that regard, include the right to make a gift of the property. [ A] general power of attorney authorizing an agent to sell and convey property, although it authorizes him to sell for such price and on such terms as to him shall seem proper, implies a sale for the principal’s benefit. Such a power of attorney, however, does not authorize the agent to make a gift of the property, or to convey or transfer it without a present consideration inuring to the principal. ... [ W]e conclude that an agent holding a broad power of attorney lacks the power to make a gift of the principal’s property, unless that power (1) is expressly conferred, (2) arises as a necessary implication from the conferred powers, or (3) is clearly intended by the parties, as evidenced by the surrounding facts and circumstances. 303 Md. at 106-07 , 492 A.2d 608 (emphasis supplied). The opinion finally pointed out how making a gift of real property pursuant to a Power of Attorney is not, as a general rule, compatible with acting in the best interests of the person who granted the Power of Attorney. [ T]he power to make a gift of the principal’s property is a power that is potentially hazardous to the principal’s interests. Consequently, this power will not be lightly inferred from broad, all-encompassing grants of power to the agent.

Accordingly, “the agent must be circumspect with regard to the powers created — or the lack of them. ” ¹⁸ Second, the main duty of an agent is loyalty to the interest of his principal. Restatement, supra, § 39 (“Unless otherwise agreed, authority to act as agent includes only authority to act for the benefit of the principal.”); id. § 387 (“Unless otherwise agreed, an agent is subject to a duty to his principal to act solely for the benefit of the principal in all matters connected with his agency.”). Thus, in exercising granted powers under a power of attorney, the attorney in fact is bound to act for the benefit of his principal and must avoid where possible that which is detrimental unless expressly authorized. 303 Md. at 108 , 492 A.2d 608 (emphasis supplied). Judge Dwyer then turned his attention to § 1.13 of the Power of Attorney, which dealt specifically with “Gifts.” The broad authority to make gifts included gifts of cash, of personal property, and of real property.

Section 1.13 provides: Gifts. I give my attorney-in-fact the power to make gifts, grants, or other transfers without consideration, of cash, or other real or personal property (including but not limited to any property then constituting] or included in any revocable trust established by me), either outright or in trust, including the forgiveness of indebtedness, in accordance with the provisions in this paragraph. (Emphasis supplied). Implementing § 1.13 was subsection 1.13(a), which dealt specifically with “Gifts To My Descendants.” There was, to be sure, a grant of power; but there were express limitations imposed on its exercise.

That subsection enjoined the attorney-in-fact to determine the “reasonableness of any proposed gift” and then spelled out certain factors that should be taken into consideration in determining the reasonableness of any proposed gift. (a) Gifts To My Descendants. Gifts may be made to any one or more of my children and/or other descendants (including my attorney-in-fact, if my attorney-in-fact is one of such persons), either outright or in trust, in such amounts and upon such terms and conditions as my attomey-in ¹⁹ fact, in my attorney-in-fact’s sole judgment, may deem to be reasonable. In determining the reasonableness of any proposed gift, my attomey-in-fact shall take into consideration the extent and nature of my assets; the federal transfer taxes that may result from a gift and/or from my death; the natural objects of my bounty and the federal estate and/or income taxes to which they may be subjected; and my potential need for long-term care, the costs thereof and the possibility of my qualification for any program of public or private benefits to pay for such costs.

The fact that I may not have established a gift giving program or pattern prior to the exercise of this power by my attorney-in-fact shall not be considered a manifestation of a purported desire by me not to undertake such a program at a subsequent time. (Emphasis supplied). Judge Dwyer found and ultimately ruled that the appellant, in deeding the family home to herself, did not act reasonably within the contemplation of § 1.13(a). 1.13 can or does in certain specific instances give the power to gift real property. But when you’re gifting to a descendant, which she is, then one has to look at the reasonableness of any proposed gift.

Because l-13(a) says in determining the reasonableness of any proposed gift, my attorney in fact, Ms. Figgins, shall take into consideration the extent and nature of my assets, the federal transfer taxes, the natural objects of my bounty and the federal, state, and, and/or income taxes and other matters including potential for long-term care.... Obviously she did not take any of that into consideration because she didn’t even know they existed at the time of the transfer because she hadn’t read the power of attorney. If she had then she would have realized that ... she was removing 85 percent of the assets of the estate and that is certainly to the detriment of the other natural objects of the bounty, the other three children. (Emphasis supplied).

Indeed, the appellant not only denied ever having read the Power of Attorney but expressly disclaimed having acted ²⁰ pursuant to the Power of Attorney. She insists, in her appellate brief, that she never exercised any discretion of her own but only acted mechanically in signing the deed for her Father. Diane Figgins’s act of signing this Deed was clearly ministerial only necessitated by the fact that Mr. Cochrane had suddenly become ill and was unable to sign it himself. Thus, Diane Figgins did not exercise any judgment or make any decision to convey the property to herself but merely signed a deed prepared by Mr. Cochrane’s lawyer at Mr. Cochrane’s request since Mr. Cochrane could not sign it himself.

So while here most likely was a confidential relationship, the actions taken by Diane Figgins did not arise out of that confidential relationship but rather arose out of Mr. Cochrane’s relationship with his lawyer, Mr. Borison, who asked Diane Figgins to sign the deed since his client Mr. Cochrane could not do so himself. Thus, it would seem incongruous to suggest that Diane Figgins as the trusted party was taking advantage of her position to her own advantage. Diane Figgins took advantage of nothing other than the invitation to sign the deed since Mr. Cochrane could not do so himself. (Emphasis supplied).

That argument, in effect, asserts that she could have done just as she did even if no Power of Attorney had ever been created. More realistically, the appellant seems to be seeking the benefits of the Power of Attorney without incurring any of its obligations. With some evidence pointing in both directions, Judge Dwyer found, as a matter of fact, that the Father’s testamentary intent was precisely as he had expressed it in his Codicil of September 16, 2004. [W]e need also to look at the intent of Mr. Cochrane.... [Tjhat is very expressly stated in the last, the codicil of the last will and testament exercised on September 16th, 2004, less than two months before his death, which gives to, first, Mrs. Figgins the value of the improvements of the residence ²¹ have to be taken off of the top and it was interesting that the term residence was used rather than real property. Because it was the real property, arguably at the time of his death he’d have no real property.

He had a residence, but he had no real property because of the deed. But they distinguish real property from residence because the one paragraph says residence and that was, Ms. Figgins even testified he died at home and from the residence you have to take off the value of the improvements, which I didn’t realize were in evidence but certainly are in evidence, to be $¿6,000, and then the exclusive right to remain in that real property, now we use the term real property as opposed to residence, is given to Ms. Figgins. Any real property owned by me at the time of my death. She has the right to remain therefor three years and then she also has the right to purchase....

So she gets three years and then 120 days to purchase. That certainly shows the intent of Mr. Cochrane. (Emphasis supplied). With the evidence arguably permitting inferences in both directions, Judge Dwyer rejected the inference that the appellant’s conveyancing of the real property to herself was in compliance with her Father’s wishes or intent.

I also look at the fact that if this is what Mr. Cochrane actually wanted to do when he went in to see Mr. Borison on October 26th, all he had to do was rather than doing a new deed, which Mr. Borison couldn’t do because he didn’t have the old deed there, was just do a new, just strike that codicil and give or bequeath to Mrs. Figgins the real property. (Emphasis supplied). Judge Dwyer concluded that the conveyancing of the property was not a reasonable exercise under the Power of Attorney. I find that first, the exercise of the power of attorney is not in accordance with the provisions of the power of attorney because under the gift provision, which is the only provi ²² sion which authorizes a transfer of real property for out, for a gift without consideration, that the attorney in fact had to take into consideration the nature and extent of [the] assets, federal taxes, natural objects of my bounty, and things of that nature.

None of that was done. If it had been done it would not have been a reasonable transaction. We have to look at the reasonableness of the proposed gift, taking into consideration all of that. That certainly was not done and there is no reasonableness to this gift.

(Emphasis supplied). When asked by the Personal Representative why she had conveyed the property to herself, the appellant’s reply, “Because I deserved it,” was an evidentiary two-edged sword that could have been taken in different ways. It could, of course, have been evidence that the appellant believed that the deed to herself to be reasonable. It could also, on the other hand, have been evidence that the appellant was not acting for the benefit of and on behalf of her Father but rather was acting for the benefit of herself.

It is precisely to handle such evidentiary two-edged swords that we have fact finders, and in this case the fact finder was Judge Dwyer. For our part, we defer to the fact-finding done by Judge Dwyer, as long as it has some support in the record. When he made no particularized fact-finding, we accept as true that version of the evidence most favorable to the prevailing party, in this case the Personal Representative. Judge Dwyer’s ultimate conclusion was a merger of both the Power of Attorney analysis and the confidential relationship analysis.

I find that it’s not authorized under the power of attorney because it didn’t comply with 1.13 of the power of attorney and, because of the confidential relationship, the burden is upon her to show validity of a no consideration transfer and that was by clear and convincing evidence. She hasn’t met that. The Plaintiff prevails and a constructive trust is granted. (Emphasis supplied).

Under either analysis or under both, we see no error. ²³ Rule 5-803(b)(3): The State of Mind Exception to the Rule Against Hearsay The appellant finally makes a major issue of one evidentiary ruling made by Judge Dwyer. In view of our affirmation of Judge Dwyer’s verdict on the basis of both his confidential relationship analysis and his Power of Attorney analysis,