In re the Estate of Lemle

Order entered January 12, 1968, striking affirmative defenses unanimously reversed on the law, with $50 costs and disbursements payable out of the estate to all parties filing briefs, and motion to strike denied. In a proceeding by a widow to elect to take against the will, the petitioner, being faced with an antenuptial agreement, seeks to avoid it on the ground of fraud. The respondent executors have pleaded estoppel and laches. An antenuptial agreement is a contract and an action to avoid it is subject to the same defenses as any other contract. It may well be that due to the nature of the contract the same facts that would establish either estoppel or laches in a suit on another type of contract would not prevail, but this does not affect the availability of the defenses. Concur — Stevens, J. P., Eager, Steuer, Tilzer and McGivern, JJ. [ 55 Misc 2d 640 .]