In re the Estate of Stoeger

Brennan and Rabin, JJ.,

dissent and vote to affirm the decree, with the following memorandum: We are of the view that under the provisions of the antenuptial agreement the widow waived her right of election. From a reading of the entire agreement it appears to us that its purpose was expressed or is at least clearly inferable, namely: that the parties mutually intended to exclude the widow from sharing in the estate of her late husband, the decedent. If it be assumed, arguendo, that the agreement may be held to be ambiguous, we are of the view that the testimony relating to the purpose sought to be achieved by the parties in its execution was properly admitted, and that this testimony, coupled with the agreement, establishes a waiver of the widow’s statutory right to elect. Accordingly, we are of the opinion that the decree of the learned Surrogate should be affirmed.