Opinion
March 7, 1994
Appeal from the Surrogate's Court, Dutchess County (Benson, S.).
Ordered that the order is reversed, on the law and the facts, without costs or disbursements, the petitioner's motion is granted, it is declared that the decedent's interest in the subject mortgage does not constitute a part of the decedent's gross estate, and the matter is remitted to the Surrogate's Court, Dutchess County, for further proceedings in accordance herewith.
Prior to her death, Edna H. Shaw sold her home, receiving a purchase-money mortgage as part of the sales price. Shortly before the closing, she had instructed her attorneys to establish a joint tenancy with the right of survivorship in the mortgage between herself and her daughter, the petitioner, as mortgagees, in order to avoid probate under her will. Around the same time, Edna H. Shaw wrote the words "viod viod" (sic) in large letters substantially across the entire will, and signed it in the presence of her attorney, who assured her that the mortgage documents would effectuate her intention to pass the entire mortgage to her daughter upon her death. However, the attorney, by his own admission, inadvertently failed to inscribe the appropriate language on the mortgage documents, thereby legally creating a tenancy in common between the decedent and her daughter (see, EPTL 6-2.2 [a]).
Contrary to the respondents' contention, a mortgage may be reformed by a court in equity after the death of the mortgagee (see, Harris v. Uhlendorf, 24 N.Y.2d 463, 467; cf., Amend v Hurley, 293 N.Y. 587). The record shows "clear, positive and convincing evidence" (Amend v. Hurley, supra, at 595) that the mortgagors and mortgagees intended a joint tenancy with the right of survivorship and that the mistake was "`in the reduction of [the mortgage] agreement to writing, [a] mistake of the scrivener'" (Harris v. Uhlendorf, supra, at 467, citing Born v Schrenkeisen, 110 N.Y. 55, 59; see also, Matter of Radigan v O'Connell, 304 N.Y. 396, 397). Therefore, the mortgage should have been reformed accordingly.
Further, contrary to the respondents' contention, the decedent validly revoked her will by cancellation; therefore, the will cannot be admitted to probate (see, EPTL 3-4.1 [a] [2] [A]; see also, Matter of Parsons, 236 N.Y. 580; cf., Matter of Lewis, 79 Misc.2d 610, 612-613). Accordingly, the competing applications for letters of administration should be determined.
In light of the foregoing, we do not reach the petitioner's remaining contention. Balletta, J.P., O'Brien, Ritter and Florio, JJ., concur.