## Facts

- Francis M. Butterfield asked his attorney, Sidney S. Goodridge, to prepare an instrument in will form leaving Butterfield’s entire estate to Mary Fleming.
- Butterfield’s purpose in having the instrument prepared was not to arrange a genuine testamentary transfer, but to use the document as a means to persuade Fleming to have sexual relations with him.
- Butterfield signed the instrument.
- Goodridge signed the instrument on the witness line as one of the required attesting witnesses under Massachusetts law (which required three witnesses).
- Immediately after the signing in Goodridge’s presence, Butterfield told Goodridge that the document was not intended to operate as a real will and was “made for a purpose.”
- Later, Butterfield obtained the signatures of two additional witnesses on the same instrument.
- Butterfield did not tell those two later witnesses that he regarded the instrument as a sham; they signed believing they were witnessing a will.
- After Butterfield’s death, Fleming, named as the sole beneficiary, sought to have the instrument admitted to probate.
- Butterfield’s heirs or other interested parties contested probate, arguing that the statutory witnessing requirements were not met because Goodridge did not truly attest the execution of a will.
- The probate proceedings included extrinsic testimony about Butterfield’s statements to Goodridge concerning the document’s non-testamentary purpose.
- The case was reported to, and decided by, the Supreme Judicial Court of Massachusetts.

## Issues

1. Whether extrinsic (parol) evidence is admissible to show that a person whose signature appears as an attesting witness did not, in fact, attest the execution of a will because he was told the instrument was not intended to be a will.
2. Whether an instrument that requires three attesting witnesses can be admitted to probate when one of the three signers did not act as a witness to a testamentary execution, leaving only two valid attesting witnesses.

## Decision

- The court held that extrinsic evidence was admissible to challenge whether the instrument was duly executed as a will, including whether a purported witness actually attested a testamentary act.
- The court concluded that Goodridge’s signature could not be counted as the signature of an attesting witness to a will because Butterfield disclosed to him that the instrument was not intended to be a will.
- Because Massachusetts law required three attesting witnesses and only two persons truly witnessed the execution as a will, the statutory formalities were not satisfied.
- The decree allowing probate was reversed, and the instrument was refused probate as Butterfield’s will.

## Legal Principles

- Due execution of a will requires compliance with statutory formalities, including the required number of attesting witnesses.
- A person does not qualify as an attesting witness in the statutory sense if he signs while understanding, from the testator’s own statement, that the instrument is not intended to operate as a will.
- Parol evidence may be received on the question of due execution to show that an apparent attestation is not a true attestation of a will, even if the document is regular on its face.
- An attestation clause and the presence of signatures are not conclusive; the court may consider evidence showing that the act witnessed was not the execution of a will.
- When the statute fixes the number of required witnesses, a shortfall is fatal to probate even if the instrument otherwise looks like a will and two witnesses acted in good faith.

## Conclusion

Because Butterfield told Goodridge that the instrument was “made for a purpose” and not intended to be a real will, the court permitted extrinsic evidence to show Goodridge did not attest a testamentary execution; with only two valid witnesses where three were required, the instrument was not duly executed and was denied probate.


Fleming v. Morrison, 72 N.E.2d 499 (1904)