In an unusual legal maneuver in the Howard Hughes will saga, purported beneficiary Melvin Dummar has asked a judge to let him question 18 elderly witnesses while he is appealing the dismissal of his fraud case against a cousin of Hughes.

The witnesses listed in a motion for depositions pending appeal include James Harrell, the widower of the owner of a Nevada brothel; top Hughes aide Robert Maheu; and former Dummar attorney Roger S. Dutson, who is now a state court judge in Utah.

Hughes cousin William Lummis, who became Hughes' sole beneficiary after the reclusive billionaire was declared intestate, adamantly opposes the motion, calling it a “discovery fishing expedition.”

Dummar, a former gas station operator, alleged in the fraud suit that Lummis conned him out of a $152 million share of the Hughes estate. Hughes supposedly wrote the so-called Mormon will naming Dummar as a beneficiary after Dummar found him lying face down on a dirt road in the central Nevada desert.

A Utah federal judge dismissed the case in January, finding the issues had been “fully and fairly litigated” at a probate trial in 1978, when a Nevada jury ruled that the Mormon will was bogus.

Now Dummar attorney Stuart L. Stein is invoking Rule 27(b) of the Federal Rules of Civil Procedure, which allows witnesses to be deposed while an adjudicated case is pending appeal if “the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice.”

“All of the witnesses sought to be deposed to preserve testimony by Plaintiff Dummar are over 70 years of age and/or have current medical issues which Rule 27(b) was intended to cover,” Stein says in a brief supporting his motion.

One witness, Hughes pilot Roberto Deiro, came forward in 2004 with evidence that appeared to corroborate Hughes was in central Nevada visiting a brothel at the time he supposedly met Dummar. According to the motion, Deiro now has prostate cancer.

Such motions are only granted in highly exceptional circumstances. Stein cites a case in which the 3rd U.S. Circuit Court of Appeals allowed the deposition of a 71-year-old witness to be taken.

“[T]he memory of events already dating back some eleven years grow[s] dim with the inexorable march of time, even on the part of one on the sunny side of the proverbial three score and ten years,” the court said in Texaco Inc. v. Borda, 383 F.2d 607 (1967).

But that case involved a stay on proceedings rather than an adjudicated dismissal to which Rule 27(b) might apply. And Lummis's counsel argues in a brief that Dummar

Dummar's references to the ages of the various witnesses and his speculation concerning their physical health [are] not enough to establish the need to perpetuate their testimony pending appeal.

Dutson, the defense notes, is “currently a full-time active judge who maintains a full caseload” and “There appears to be no danger his testimony will be lost during the relatively brief time it takes to process an appeal in the Tenth Circuit.”