This will, which the surrogate after mature deliberation admitted to probate, was entirely in the handwriting of the testator. It was properly signed at the end by the testator; he declared it to be his will in the presence of two disinterested witnesses; he acknowledged his signature to one witness in the presence of the other; both witnesses signed as such in the immediate presence of the testator and in the presence of each other. The only formality lacking in the proof is that the testator requested the witnesses to sign. There is no suggestion of fraud or undue influence. Under such circumstances, a careful and experienced surrogate being satisfied that the document was in fact the testator’s will, I do not think that we are compelled to hold that a statute enacted to prevent fraud, and substantially complied with, shall be applied so literally as to destroy the will and frustrate the testator’s clear intention.
“ The atmosphere of a testamentary instrument, wholly in the handwriting of the testator, is such as, naturally, to dispose the judicial mind to accept it as his will with less *204strictness in the proof of a compliance with statutory formalities. In all cases, a substantial compliance will be sufficient and no particular form of words is required, or is necessary, to effect publication.” (Matter of Turell, 166 N. Y. 330, 337.) If this is the rule with respect to the all-important matter of publication, there is much stronger reason for applying it to such a purely formal matter as requesting witnesses to sign, especially in a case where the document was, concededly, declared by the testator to be his will and at the same time he acknowledged his signature and saw the witnesses sign. The Court of Appeals has so declared. “ The manner and form in which the request must be made, and the evidence by which it must be proved, are not prescribed.” (Coffin v. Coffin, 23 N. Y. 9, 16.) As the evidence shows that the testator was of sound mind and understood what was being done, it may readily be inferred in this case that it was his wish that the witnesses should sign as such, and when they did sign under his very eyes, and only two or three feet away from him, his acquiescence, together with all the surrounding circumstances, was tantamount to a request.
The decree should be affirmed.
Decree reversed, with costs, and application for probate denied, with costs. Order to be settled on notice.