The issue is whether subdivision 9 of section 18 of the Decedent Estate Law prevents the enforcement of a waiver of the right of election embodied in a separation agreement admittedly executed but not acknowledged at the time of execution by the waiving party, whereby such party obtained real property and other rights as a consideration for the waiver, and after the death of the other spouse admitted before the Surrogate her execution of the agreement and the receipt of the consideration. We do not think that the statute is to be so narrowly construed as to forbid the enforcement of the waiver agreement under the circumstances of this case.
The widow and her deceased husband signed a separation agreement on November 3,1950, and lived apart thereafter until the husband’s death on July 20,1954. The separation agreement provided for a property settlement on the widow, whereby her husband agreed to convey to her the family home in Brooklyn, New York, and the family furniture, and to pay to her the sum of $1,500 in installments. The agreement further provided that “ [u]pon full compliance by the husband of all the conditions prescribed herein and the full payment by him of all sums herein provided, the parties shall be deemed to have released and discharged each other from all claims against each other’s estates respectively including the right of election to take against any will.” We agree with the majority that on this record the evidence indicates that the husband fully complied with the conditions of the agreement.
The widow was represented by counsel in the execution of the agreement and consulted with him before signing it. Her husband’s will, made on July 5,1954, shortly before his death, stated that he made “ no provision for my wife Alice Warren for the reason that my said wife heretofore deserted and abandoned me, and, in or about the year 1950, received a property settlement from me. ’ ’
Before the Surrogate, the AvidoAV admitted that she had signed the separation agreement and received the property settlement, but refused to acknowledge her signature. Belying principally on Matter of Howland (284 App. Div. 306), the Surrogate held that the waiver of the right of election was ineffective because (1) the statute is not satisfied by mere proof of a genuine and *510knowing signature, and (2) the acknowledgment was not performed during the lifetime of her husband.
Matter of Howland (supra) is not controlling here. There the agreement under scrutiny was made in 1932, and the opinion refers specifically to the provisions of the statute as it existed at the time the agreement was made (284 App. Div. 307-308, supra). The instant agreement was made in 1950, and in 1947. the statute was substantially amended (L. 1947, ch. 379). The amendment was preceded by a study and recommendation of the Law Revision Commission (1947 Report of N. Y. Law Rev. Comm., pp 25-26). The study states that “ [t]he proposed statute is designed to express the law so as to remove the uncertainties which might result from the present ambiguous language of the statute ” (1947 Report of N. Y. Law Rev. Comm., p. 26).
Prior to the amendment the statute, so far as pertinent, read as follows: “ 9. The husband or wife during the lifetime of the other may waive the right of election to take against a particular last will and testament by an instrument subscribed and duly acknowledged, or may waive such right of election to take against any last will and testament of the other whatsoever in an agreement so executed, made before or after marriage.” (L. 1930, ch. 174.)
After the amendment the statute, so far as pertinent, read as follows: “9. The husband or wife, during the lifetime of the other, may waive or release the right of election to take as against a particular last will, or as against any last will of the other spouse. A waiver or release of all rights in the estate of the other spouse shall be deemed to be a waiver or release of the right of election as against any last will. A waiver or release to be effective under this subdivision shall be subscribed by the maker thereof and either acknowledged or proved in the manner required for the recording of a conveyance of real property.” (L. 1947, ch. 379.)
It will be observed that in at least two particulars the amendment affected the need for an acknowledgment of a waiver of the right of election.
First, the words “during the lifetime of the other” are removed from the sentence requiring an acknowledgment, and presently modify only the power to waive the right of election. Thus, the amendment requires that the waiver be executed during the lifetime of the spouses, but no longer requires that the acknowledgment take place during their lifetimes, thereby recognizing the force of the previous holding in Matter of Maul (176 Misc. 170, affd. 262 App. Div. 941, affd. 287 N. Y. 694).
*511Secondly, the amendment permitted the proof of the waiver in the manner required for the recording of a conveyance of real property, as an alternative to an acknowledgment (cf. Matter of Maul, supra).
Accordingly, Matter of Howland (284 App. Div. 306, supra) construed the statute prior to its amendment and does not apply to the instant agreement made after the amendment. As it now reads, the statute in our opinion does not require the acknowledgment or proof to take place during the lifetime of the spouses.
There is also no question that the Surrogate was empowered to take the acknowledgment of the widow (Surrogate’s Ct. Act, § 20, subd. 12; Real Property Law, § 298, subd. 2; General Construction Law, § 11); and we think he did that within the meaning and intent of the statute when the widow testified before him that she signed the agreement. An acknowledgment “ proves the identity of the person whose name appears on the petition and that such person signed the petition ” (Matter of Bristol v. Buck, 201 App. Div. 100, 102, affd. 234 N. Y. 504; see, also, Matter of Maul, 176 Misc. 170,172, affd. 262 App. Div. 941, affd. 287 N. Y. 694, supra). We do not think that the mere refusal to say the word ‘ ‘ acknowledge ’ ’ robs efficacy from the act, when at the same time the identity of the actor and the authenticity of the signature are admitted.
Form and ritual have their place in the law (cf. People v. Zambounis, 251 N. Y. 94, 97). But we may not so extend the purpose of ritual as to defeat the plain effect of an agreement acknowledged in open court to have been executed and performed by the parties.
Once the demands of ritual have received substantial compliance, then we need press them no further; else form is elevated above substance. Here, the widow executed a waiver of her right of election, obtained material benefits as a result, and yet seeks to secure a further share from her stranged husband’s estate. We hold that her waiver was acknowledged within the intent of the statute and that it is now effective to bar her right of election.
The decree should be reversed and the matter should be remitted to the Surrogate’s Court for further proceedings not inconsistent herewith.
Kleinfeld and Brennan, JJ., concur with Christ, J.; Hopkins, J., dissents, in opinion, and votes to reverse the decree and to remit the proceeding to the Surrogate’s Court for further proceedings not inconsistent with his dissenting opinion. Ughetta, Acting P. J., concurs with Hopkins, J.
Decree affirmed, without costs.