(dissenting). The majority opinion outlines the basic provisions of the separation agreement. However, in order to ascertain the intentions of the parties, certain additional and more specific language of the agreement and a consideration of the surrounding circumstances might be emphasized. That portion which relieves the husband from his obligations to support his wife and eight-month-old son is significant because of its very broad terms and its far-reaching effect. The husband is relieved ‘ ‘ from all obligations of every kind and nature for and on account of the support of [the wife] and their infant son Edward, and also care and medical attendance * ⅜ * and the [wife] assumes * * ⅝ the care, education, support and maintenance of said infant from now henceforth.” Although the testimony is vague and meager, it may be gleaned from the record that the parties could well have anticipated that the wife would encounter financial difficulty in performing the obligations she thus assumed. Actually, thereafter, the husband never assisted either the wife or the child financially.
When he left the testatrix, the surviving husband retained certain items of personal property and turned all the rest over to testatrix. He transferred all his right, title and interest in the real property in Seneca Falls in return for the payment of $800 to him and $100 to an attorney to whom the husband might have been indebted. He agreed that he would not claim or demand any moneys, jewels, plate, clothing, household goods or furniture which testatrix then possessed or which she might possess at any time thereafter.
It is from all of this that the intention of the parties must be discovered.
‘ ‘ In our view the paragraphs quoted above from the written instrument make clear the intention of the petitioner to make *57no claim against, her husband’s property while he was alive or against his estate in case she survived him. It is difficult to conceive of language which would express more clearly the wife’s intention to relinquish all her rights to her husband’s property and ‘ estate ’. * ⅜ * Where, however, as in the case at bar, the separation agreément was subscribed and duly acknowledged, and there is no evidence of fraud or concealment in the execution of the agreement; and where the agreement indicates clearly an intention by a wife to waive her rights in her husband’s estate, we conclude she may not now elect against the will under section 18 of the Decedent Estate Law.” (Matter of Sturmer, 303 N. Y. 98, 105-107.) Thus, in the Sturmer case, the court stressed the intention of the parties rather than the precise language employed as the controlling factor.
In view of the comprehensive nature of their division of property, it appears that the written agreement, executed by the parties, fairly represented the intentions of the parties that it should be a just and equitable settlement of all their affairs. The agreement, considered as a whole, bears a definite stamp of finality. The husband apparently had no interest in the welfare and financial situation of testatrix or of his child and both parties considered that their status with one another had been completely and finally settled. Since sections 18 and 83 of the Decedent Estate Law had not been enacted at the time the separation agreement was executed, there could have been no specific reference to a waiver of a right of election not then known to the law. In the present ease, the broad language used in the agreement, disposing of the husband’s rights to property, then held by the wife “ or which she may at any time hereafter have, or which shall be devised or given to her, or that she may otherwise acquire ” is likewise sufficient to meet the demands of subdivision 9 of section 18.
The opinion in Matter of Schwimmer (8 Misc 2d 550) provides a comprehensive review of New York cases, dealing with agreements which effected a waiver of elective rights. These cases “ took into consideration the factors always present in litigations respecting writings * * '* the background of the parties, the circumstances attending the preparation and execution of the paper in controversy, the objective which the parties sought to attain and the tenor of the paper itself.” When all these factors are considered in the present case, the picture presented is that of a husband and wife, completely severing their relationship and property rights for all time. From a very technical point of view the enumeration of certain *58personal property might indicate that all other property should be excluded from the scope of the agreement, but technical construction is of little help to determine the intention of these parties.
It is my conclusion therefore that by executing this separation agreement, the husband waived his right of election as to any of his wife’s estate.
At the very least, however, the agreement should be given effect as a waiver of the right of election as to that property specified. This court recently in Matter of Wesche (4 A D 2d 997) decided that a waiver could bar a right of election as to part of an estate. From the record, it is impossible to determine if, in fact, there are any assets in the estate which would be outside the scope of the separation agreement. The language “ or which she may at any time thereafter have ” should not be interpreted to mean only during the wife’s life, but rather should extend to include claims to her estate.
All concur, except Williams, J., who dissents and votes for affirmance, in a separate, opinion. Present — McCurN, P. J., Vatjghan, Kimball, Williams and Bastow, JJ.Decree reversed on the law and facts, without costs of this appeal to any party and matter remitted to the Surrogate’s Court for further proceedings not inconsistent with the opinion.