FLEMING v. MORRISON, Mass., Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

citation codes

Attorney(S)

W.B. Murphy H.T. Lummus, (J.W. Berry with them,) for the appellee. Witnesses attest the formal act of signing, not the intent. See Osborn v. Cook, 11 Cush. 532; Baxter v. Abbott, 7 Gray, 71, 82. A deed signed and attested with the expectation of never completing it by delivery becomes a valid attested instrument if delivered. If the animus testandi exists when a paper acquires vitality by the attestation of the third witness the instrument is a valid will, whatever the state of mind of the testator was before that time. H.P. Harriman J.F. Neal, for the appellants.

Judges

LORING, J.

See more information ...

Smart Summary

Factual and Procedural Background

This appeal arises from a decree of the Probate Court for Essex County dated April 27, 1903, which allowed a certain instrument as the last will and testament of Francis M. Butterfield, late of Lynn. The case was initially heard by Justice Loring, who found that Butterfield was of sound mind, that no undue influence was exercised, and that the will was properly executed. At the request of the contestants, the case was reported to the full court for determination.

Justice Loring’s findings included that on or about May 18, 1901, Butterfield requested Sidney S. Goodridge to draft a will leaving all his property to Mary Fleming. Butterfield signed the instrument, and Goodridge attested as a witness. However, Butterfield told Goodridge that this was a "fake" will made for a purpose—to induce Fleming to allow him to sleep with her—and that he did not intend to complete it by having it attested and subscribed by at least two other witnesses at that time. Subsequently, Butterfield produced the instrument before two other witnesses, Bryant and Cheney, who attested and subscribed it as witnesses. The words appointing Mary Fleming as "administratrix" were added after the attestation by Bryant and Cheney.

Legal Issues Presented

Whether the instrument was executed with the necessary animus testandi—the testator's intent to make a valid will—at the time of signing and attestation.
Whether parol evidence may be admitted to contradict the written statements in the will regarding its execution and testamentary intent.
Whether the instrument, having been attested by only two witnesses with the testator’s intent to make it a will only at that stage, satisfies the statutory requirements for a valid will under Massachusetts law.

Arguments of the Parties

Appellee's Arguments

Witnesses attest the formal act of signing, not the testator’s intent.
Precedents such as Osborn v. Cook and Baxter v. Abbott support that a deed or will signed and attested with the expectation of never completing it may become valid upon delivery or completion.
If the animus testandi exists when the paper acquires vitality by the attestation of the third witness, the instrument is a valid will regardless of the testator’s prior state of mind.

Appellants' Arguments

The opinion does not contain a detailed account of the appellants' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Osborn v. Cook, 11 Cush. 532	Witnesses attest the formal act of signing, not the testator's intent.	Referenced by appellee to support the argument that attestation validates the instrument regardless of earlier intent.
Baxter v. Abbott, 7 Gray, 71, 82	Similar principle regarding attestation and execution of deeds or wills.	Used by appellee to argue that the instrument can become valid upon completion of formalities.
Lister v. Smith, 3 Sw. Tr. 282	Parol evidence may be admitted to contradict written statements in a will.	Cited by the court to affirm the admissibility of oral evidence to show the testator's actual intent.
Nichols v. Nichols, 2 Phill. 180	Supports the principle that parol evidence can contradict the written instrument.	Applied by the court to justify considering extrinsic evidence on the testator's intent.
In the Goods of Nosworthy, 11 Jur. (N.S.) 570	Similar to Lister and Nichols regarding parol evidence.	Used to support the court’s acceptance of oral testimony contradicting the will’s formal statements.
In the Goods of Hunt, L.R. 3 P. D. 250	Parol evidence can show an instrument was executed by mistake.	Referenced to show that mistakes in execution can be proven despite the written document.
Hubbard v. Alexander, 3 Ch. D. 738	One of two codicils duly executed was intended as a duplicate.	Supports the principle of considering extrinsic evidence on the nature of testamentary documents.
Elastic Tip Co. v. Graham, 185 Mass. 597	A written agreement duly executed may be shown to have been delivered on condition.	Used to analogize that delivery or intent conditions may affect the validity of executed instruments.
Chase v. Kittredge, 11 Allen, 49	Execution of wills may be acknowledged before each witness separately.	Supports the requirement that animus testandi must exist at the time of signing or acknowledgment before each witness.
Holbrook v. Young, 108 Mass. 83	Not applicable to this case as argued by the proponent.	The court distinguished this precedent as not controlling the present case.

Court's Reasoning and Analysis

The court focused on whether the testator, Butterfield, possessed the requisite animus testandi—the intent to make a valid will—at the time of execution. The key finding was that Butterfield described the initially signed instrument as a "fake" will made solely to induce Mary Fleming to sleep with him, and that he did not intend to complete it as a valid will at that time. The court interpreted this as a sham transaction, concluding that Butterfield lacked the necessary testamentary intent when the instrument was first signed and attested by Goodridge.

The court rejected the argument that subsequent acknowledgment before two other witnesses completed the execution, noting that the statutory requirement in Massachusetts mandates attestation by at least three witnesses and that the animus testandi must exist at the time of signing or acknowledgment before each witness. Since Butterfield only acknowledged the instrument before two additional witnesses, the statutory formalities were not met.

Importantly, the court held that parol evidence is admissible to contradict the written declarations in the will regarding its execution and the testator’s intent. This allowed the court to consider Butterfield’s statement to Goodridge that the instrument was a fake will, undermining the proponent’s case.

The court distinguished wills from deeds, emphasizing that unlike deeds, wills require strict compliance with statutory formalities including the presence and attestation of three witnesses with the testator’s intent at that time. The court found no evidence that Butterfield changed his mind after the initial signing to complete the will properly.

Holding and Implications

The decree of the Probate Court allowing the instrument as the last will and testament of Francis M. Butterfield is reversed, and the instrument is disallowed as his will.

The direct effect of this decision is that the instrument is invalidated and does not constitute Butterfield’s will. The court’s ruling underscores the necessity of the testator’s intent at the moment of execution and attestation by the requisite number of witnesses under Massachusetts law. No new legal precedent beyond the application of existing principles regarding testamentary intent and statutory formalities was established.

Show full summary ...

MARY FLEMING vs. JOHN R. MORRISON another.

Will, Execution and attestation. Evidence, Extrinsic affecting writings. If a man, having signed an instrument purporting to be his will leaving all his property to a certain woman, and having acknowledged it as his will before one attesting witness intending not to complete the instrument or to make it a valid will but merely to use it to induce the woman named as legatee to sleep with him, afterwards decides to make the instrument a valid will and with such intention acknowledges it as his will before two other witnesses who attest it as such, the instrument cannot be allowed as a will, as it has been acknowledged before and attested by only two witnesses when the attempting testator had the intention of making it his will.

The statements in an instrument purporting to be a will, that it was executed by the person named as testator as his will and was declared by him to be such in the presence of three witnesses whose names are subscribed, can be contradicted by oral testimony showing that the person named as testator, when he signed the instrument in the presence of one of the three witnesses and when that witness signed, did not intend to make the instrument a valid will by acknowledging it before two other witnesses and having it attested by them.

LORING, J.

All the rulings asked for at the hearing have been waived, and the only contention now insisted upon by the contestants is that on the finding made at the hearing the proponent of the will has failed to prove the necessary animus testandi. We are of opinion that this contention must prevail.

The finding that before Butterfield and Goodridge "parted" Butterfield told Goodridge that the instrument which had been signed by Butterfield as and for his last will and testament and declared by him to be such in the presence of Goodridge, and attested and subscribed by Goodridge as a witness, "was a `fake' will, made for a purpose," is fatal to the proponent's case. This must be taken to mean that what had been done was a sham. This is not cured by the further finding that what Butterfield meant by this was "that he did not intend to complete the instrument by having it attested and subscribed by at least two other witnesses, and that the purpose referred to by him was to induce said Fleming to allow him, said Butterfield, to sleep with her."

This is not a finding that Butterfield intended to sign the instrument before Goodridge as and for his last will and testament, leaving the further execution to depend on future events. Much less is it a finding that Butterfield changed his mind after he had signed and had had Goodridge attest and subscribe the instrument. The whole finding taken together amounts to a finding that Butterfield had not intended the transaction which had just taken place to be in fact what it imported to be, that is to say, a finding that when Butterfield signed the instrument and asked Goodridge to attest and subscribe it as his will he did not in fact then intend it to be his last will and testament but intended to have Mary Fleming think that he had made a will in her favor to induce her to let him sleep with her.

We are of opinion that it is competent to contradict by parol the solemn statements contained in an instrument that it is a will, that it has been signed as such by the person named as the testator and attested and subscribed by persons signing as witnesses. Lister v. Smith, 3 Sw. Tr. 282. Nichols v. Nichols, 2 Phill. 180. In the Goods of Nosworthy, 11 Jur. (N.S.) 570. For similar cases as to wills, see In the Goods of Hunt, L.R. 3 P. D. 250, where it was held that it could be shown by parol that the instrument executed was executed by mistake; and Hubbard v. Alexander, 3 Ch. D. 738, where it was held that one of two codicils duly executed was intended to be a duplicate. It was lately held by this court that a written agreement, duly executed, could be shown to have been delivered on a condition. Elastic Tip Co. v. Graham, 185 Mass. 597. And see the cases there cited.

"The momentous consequences of permitting parol evidence thus to outweigh the sanction of a solemn act are obvious. It has a tendency to place all wills at the mercy of a parol story that the testator did not mean what he said," in the words of Sir J.P. Wilde, in Lister v. Smith, 3 Sw. Tr. 282, 288. In fact that learned judge went so far as to say that it was so dangerous a kind of evidence and that it was so difficult to impress on a jury "the enormous weight which attaches to the document itself as evidence of the animus with which it was made," that although he was prepared in that case to act on the finding of the jury, he was "far from saying that the court will in all cases repudiate a testamentary paper simply because a jury can be induced to find that it was not intended to operate as such."

We cannot accede to the argument of the proponent that a will is like a deed where witnesses are required to the signature of the grantor. In that case it is enough that the instrument is complete when delivered. But in case of a will there is no delivery of the instrument. The punctum temporis in case of a will is when it is signed, or, having been signed previously, when the signature is acknowledged in the presence of three or more witnesses. And where that is done before each witness separately, (as it may be done in this Commonwealth, Chase v. Kittredge, 11 Allen, 49,) the animus testandi must exist when it is signed or acknowledged before and attested and subscribed by each of the necessary three witnesses. If this is not done the statutory requirements have not been complied with.

Assuming that the acknowledgment animo testandi of a signature not originally made with that animus is enough, the will in the case at bar would have been duly executed had Butterfield subsequently acknowledged the instrument before three in place of two additional witnesses. But he did not do so. The instrument having been acknowledged and attested and subscribed by two witnesses only is not a valid will within R.L.c. 135, § 1.

It has not been argued that the want of the necessary animus testandi is not open under the terms of the first reason of appeal. Although the question here discussed was not raised at the hearing by the rulings requested by the contestants, it was considered by the presiding justice and is presented by the ruling made on his finding. The case does not come within Holbrook v. Young, 108 Mass. 83, relied on by the proponent.

Decree to be entered reversing decree of Probate Court, and disallowing the instrument as the will of Butterfield.

FLEMING v. MORRISON