It was conceded on the argument that the testator was competent to devise, at the time of the execution of this will. And the only question before me, relative to the validity of the will, is whether it was duly executed. It is well established, on this return, (1.) That the testator subscribed the *393will, at the end of it; (2.) Tha( he did so in the presence of each of the attesting witnesses; and (3.) That there were at least two attesting witnesses, each of whom signed his name as a witness, at the end of the will. But whether they did so at the request of the testator, and whether he did, at the time of the subscription to the will, declare it to be his last will and testament, were the points discussed before me, which I am called upon to decide.
I assent fully to the remark that the requisites of the statute should be strictly enforced, and that it is far better that one, and even many, wills should be set aside, than that, the safeguards which the wisdom of the statute has thrown around the aged and the weak, in their dying hours, should in the least be impaired by a course of loose or liberal construction. But while this principle is fully implanted in the law, and while our courts have, with commendable firmness, insisted upon a rigid compliance with the formula required in our statute, on wills, they have never held that a literal compliance was necessary. A substantial compliance is enough. The chief justice, in delivering the opinion of the court for the' correction of errors, in Remsen v. Brinkerhoff, (26 Wend. 332,) lays down the true rule, that no form of words is, necessary. The only sure guide for the courts is to look at the substance, sense and object of the law, and with the aid of these, lights, endeavor, to ascertain if there has been a substantial compliance.
By these principles the question now before me must be determined.
1. As io publication. All the witnesses agree that at the instant of executing the will, and immediately upon finishing his signature, he laid down his pen, put his finger on the seal and said, “ I acknowledge this to be my last will and testament.” If he had used the words I declare this to be my last will and testament, it would have been a literal compliance with the statute. But can that be necessary ? I am not aware of any case, especially on a remedial statute, where it has been exacted.
The object of the statute was to secure evidence that a tes*394tator when he executed the instrument, knew that it was a will, and not an indenture or deed of a different character. That object has been fully attained in this case ; and it is most manifest that the testator knew and intended to make known or communicate to the attesting witnesses, by words and signs, that the paper which he then subscribed was his last will and testament. The surrogate was right, then, in holding this to be a sufficient publication.
The next point is, that the witnesses were not properly requested to become such. There is no doubt that they were, each of them, in fact so requested by him. But the objection is, that this request was preferred before the will was signed, and not at the instant of its execution, or immediately after-wards. The statute, though it does, as to publication, contain a provision as to the time at which it shall be made, viz. the time of subscription, does not contain any as to the time when the witnesses are to be requested; and we are not, in that regard, bound down by any express enactment. To give force and efficacy to this objection we must do so by construction, or rather by establishing a new rule by decision of court. I do not discover any good reason for laying down any such rule. The attesting witnesses are regarded in the law as persons placed around the testator in order that no fraud may be practised upon him in the execution of his will, and to judge of his capacity. (2 Greenl. Ev. § 691.) Our statute, by a provision not commonly found in statutes on wills, has conferred upon the testator, alone, the power of selecting the persons who are thus to be placed around him. And when it is ascertained that the attesting witnesses, his protectors against fraud, and the judges of his capacity, have been freely chosen by himself and not imposed upon him by others, the whole purpose of the law is answered, and its requirements' are literally as well as substantially complied with. In this case there is no doubt that the testator enjoyed and exercised this freedom of choice, and exercised it in such a manner that his request to the witnesses was as much a part of the res gestee as any other ingredient in the execution of the will. His subscription to the will, his publica*395lion of it, his request to the witnesses, and their subscriptions, were all done at the same time; not at the same instant of time, for that would have been impracticable ; but at the same interview, one act immediately following the other without any interval and without any interruption to the continuous chain of the transaction. This was enough. It was a strict compliance with the requirements of the statute.
This disposes of all the objections to the validity of the will. The others discussed before me, relate to the form of the proceedings before the surrogate. I very much doubt whether I have authority, under the special power conferred upon me by the statute, in respect to this appeal, to review any other decision of the surrogate than his final one admitting or refusing to admit a will to probate. But the view I take of the residue of this case, renders a decision on this point unnecessary.
There are several very satisfactory answers to the objection taken to the mode in which one of the witnesses was re-examined. In the first place, so far as these appellants are concerned, the examination of the witness was entirely regular in point of form ; for while they were parties to the proceedings before the surrogate, he was first duly sworn and then examined and cross-examined. In the next place, the statute does not point out any mode or form in which testimony shall be taken before the surrogate. It will be enough if it be attested by the solemnity of an oath, with full opportunity of examination for both sides. And lastly, if there was an irregularity, the appellants must be considered as having waived it. They made no objection at the time, when if they had, it might have been easily obviated; and it is now too late.
The objection as to the exclusion of the testimony offered in respect to the number and situation of the next kin, seems to me to be also unfounded. The testimony might have been proper, if the question of the competency of the testator to make ■a will had been mooted before the surrogate. But it was not. The only question raised below was as to the validity of the execution of the will, and as to that, the testimony offered was irrelevant. The competency of the testator being admitted be*396fore me, shall I send the case down to a jury to take testimony as to the number and condition of the testator’s heirs and next 'of kin? To what end? and what possible bearing could the 'testimony, if taken; have upon the only question before me, the proper execution, namely, of the Will ?
Nor do I see any thing wrong in the surrogate’s decision as to the interest of one of the witnesses. His hiring of the executor apart of thé personal property of the estate, does not render him an interested Witness. If it had been suggested that the terms of his hiring had been unfair or unreasonable, it might shake his credibility ; and if it went far enough to show subornation, might affect his competency. But there is nothing of that kind in the case; and the mere fact of his hiring the scow, or lighter, did not disqualify him. And as to his hiring the real estate, it is too late now to make the objection. It was not made below, when, if valid, it might have been obviated by a reléase.
For these reasons I shall affirm the surrogate’s decision, admitting the will to probate.