"George F. Johnson died at Mountainside, Union county, N. J., June 1, 1910, in the seventy-eighth year of his age. He was a widower, without children, and had lived at Mountainside on a farm since the year 1905. He called his farm 'Place Villa Johnson.' There was a dwelling house on the farm which he occupied alone since the death of his wife in 1907; his attendants being a Frenchman named Henri and his wife. Mr. Johnson had a foreman or manager for the farm, named Stewart M. Hazlett, who lived with his wife in a small dwelling on the premises. Hazlett had occupied the position since November, 1909, succeeding some other foreman. Mrs. A. Josephine Smith, a cousin of Mr. Johnson's wife, frequently visited the home of Mr. Johnson. She testified that she had known Mr. Johnson since she was seven years of age, but that she did not visit at Mountainside until after Mrs. Johnson's death owing to her occupation and absence from the country, and that she was there infrequently until Mr. Johnson's illness, which began in September, 1909, and then she devoted as much time as she could possibly give him. Her visits were generally made on Wednesday and Saturday; she spending Wednesday night and Saturday and Sunday there. Letters were produced written in 1904, 1905, and 1906, from Mr. Johnson's wife to Mrs. Smith, showing that their relations were of the friendliest kind. Letters were also produced from Mr. Johnson to Mrs. Smith, which show that their relations were also friendly; the latest bearing date September 16, 1909. Mr. Johnson had spent the greater part of his business life in New York City, where he was engaged in the produce commission business, and during the last 25 or 30 years of his life he was a general agent of the Equitable Life Assurance Society. Mr. Johnson's relatives living at the time of his decease were his sister, Jennie, wife of Judge Morris Winfield, a lawyer practicing in Logansport, Ind., a brother, and nephews and nieces. I think the weight of the evidence is that Mr. Johnson had no special affection for these relatives. He was hospitable and was frequently visited by his neighbors. A paper (or rather four sheets of paper not fastened together) purporting to be his last will and testament, bearing date December 23, 1909, was produced in the surrogate's office by Mrs. A. Josephine Smith, the executrix named therein. Caveats have been filed by Mr. Johnson's sister, Mrs. Jennie Winfield, wife of Judge Morris Winfield, and heirs and next of kin. Mr. Johnson was taken ill in September, 1909, and from that time on was confined to his house. He suffered from a complication of diseases which affected his breathing to such an extent that he was obliged to remain in a sitting posture and could not lie down to sleep. His feet and legs became swollen and locomotion was very difficult for him. At the time of executing the document in question, he was confined to the second floor of his house and hardly able to move from one room to another. It appears from the admission of counsel that the estate is valued at about $75,000 subject to a deduction of $10,000 for indebtedness.
"Execution of the Will.
"The evidence seems to be decisive that the document was executed in Mr. Johnson's bedroom between 9 and 10 a. m. on December 23, 1909. This is the date written on the will in Mr. Johnson's handwriting. Stewart M. Hazlett, one of the witnesses to the will, says it was executed on Christmas day, December 25, 1909. I think he is mistaken. Dr. Wright, the other subscribing witness, testifies that he called on the morning of December 23d, and that Mr. Johnson asked him to witness his will. He further testifies that Mr. Johnson spoke of having a Mr
Badgley, a neighbor, as the other witness, but that Mr. Badgley was not available at the time. Then the doctor suggested that Mr. Hazlett, the foreman on the farm, be called, and that he was summoned. When Mr. Hazlett came into the room, Dr. Wright testifies that he told him in testator's presence that Mr., Johnson wished him to witness his will. Mrs. Smith testifies, referring to Hazlett coming into the room of Mr. Johnson just before the will was signed: 'Q. He bid him good morning? A. As I recall it, it is as Mr. Hazlett came into the room with a look of inquiry on his face, Mr. Johnson said to him, "I want you to witness my signature to a paper." Q. Mr. Johnson said that? A. Yes, sir.' When the paper was executed, there were present Mr. Johnson, Dr. Wright, Mr. Hazlett, and Mrs. Smith. Mrs. Smith produced the four sheets, and then Mr. Johnson signed the last one; the sheets being all together but not fastened. Dr. Wright testifies that Mr. Johnson signed the will and dated it. He wrote as follows: 'George P. Johnson, Place Villa Johnson, Dec. 23rd, 1909.' Dr. Wright also testifies that he and Hazlett were standing in front of or at the angle of testator's table, and that they both saw him sign it.
"I quote from Dr. Wright's testimony as to what next occurred: 'Q. You stepped forward, you said? A. Yes, sir; I stepped forward as he lay back exhausted, after he had signed his name, and as I did so he gave me to understand that I was there to witness his signature. Q. What did you say? A. Then I took the pen, and in doing that I said, before signing my name to the paper, I said, to Mr. Johnson, "Mr. Johnson, you acknowledge this to be your last will and testament," and I said, "I want to know what I am signing," and he said he did. By Mr. Voorhees: Q. He said he did what? A. He said, "I do." By Mr. Gilhooly: Q. Was there anything said about the witness? A. And then I said, "And this, I understand, I am witnessing, and you acknowledge this to be, your last will and testament, and I am to sign as a witness." Q. Was there anything said about Mr. Hazlett signing it? A. No, nothing was said about Mr. Hazlett signing it, only I stepped back and handed the pen to Mr. Hazlett, or he took the pen, I don't know which, and then Mr. Hazlett signed his name to the paper as a witness.'
"Hazlett testifies that Mrs. Smith produced the four sheets and that he saw Mr. Johnson sign one of them. I quote from Hazlett's testimony: 'Q. After Mr. Johnson signed that paper, did not Dr. Wright say to Mr. Johnson, "Do you acknowledge this to be your last will and testament?" A. He did; yes, sir. Q. You heard Dr. Wright say that? A. Yes, sir. Q. And what did Mr. Johnson do then? A. Mr. Johnson made no reply, but hung his head on his little table like that (illustrating). Q. Didn't he nod his head? A. No, sir; he did not Q. Dr. Wright said Mr. Johnson replied, "Yes, I do"? A. No, sir; he never made any reply. Q. You do not agree with Dr. Wright in that then? A. No, sir; decidedly not. Q. And Dr. Wright says that Mr. Johnson said, "I ask you to be my witnesses"? A. No, sir. Q. You didn't hear him say that? A. No, sir. Q. After Mr. Johnson signed, who signed next? A. Dr. Wright. Q. Did you see Dr. Wright sign? A. Yes, sir. Q. After he signed, who signed next? A. I signed. Q. And you signed in the presence of Dr. Wright and Mr. Johnson, didn't you? A. Yes, sir.'
"The counsel for the caveators admitted on the argument that the paper writings offered as the last will of George P. Johnson have been executed and published in accordance with law. After the witnesses for the proponents had given their testimony on that phase of the case, I permitted the said paper writings to be offered in evidence. A further consideration of the evidence confirms my opinion that the document was duly executed in conformity with the provisions of the New Jersey statute relating to wills. The only testimony which militates against this conclusion is that of Hazlett I am satisfied that, when he came into Mr. Johnson's room on the morning of the execution of the will, he was informed either by Dr. Wright or Mr. Johnson, the testator, that he was wanted to witness a paper; that the execution of the will was forthwith proceeded with; that sufficient publication was made in his presence and hearing; that he saw testator sign and also Dr. Wright, and that he (Hazlett) immediately signed in their presence. See Ayres v. Ayres, 43 N. J. Eq. 565-571, 572, 12 Atl. 621, and cases cited it will be seen from the testimony that Hazlett immediately took a position antagonistic to the will; that is, he forthwith expressed the opinion that it was not a valid document.
"Document in Four Sheets.
"As this document consists of four sheets, which were not fastened together, and only one of which was signed by the testator, a question arose as to whether these four sheets were in fact before the testator and constituted the document which he published as his will. As the four sheets offered in evidence are in the handwriting of Mrs. A. Josephine Smith, she became a very important witness on the subject, and she was examined and cross-examined at length. She testifies that they are the same four sheets of paper, and it is to be said that there is no evidence to the contrary. Joseph M. Wright, one of the subscribing witnesses, is quite positive that the papers are the same which he witnessed. He did not read them. Stewart M. Hazlett, the other subscribing witness, says there were four sheets. When asked whether the sheets offered were...
