Estate of Shaw, Matter of

• Decision Date: 07 March 1994
• Citation: 202 A.D.2d 433,608 N.Y.S.2d 707
• Parties: In the Matter of the ESTATE OF Edna H. SHAW, Deceased. Darlene G. S. Gonzalez, Appellant; Lisa Christine S. O'Connor, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 707

608 N.Y.S.2d 707

202 A.D.2d 433

In the Matter of the ESTATE OF Edna H. SHAW, Deceased Darlene G. S. Gonzalez, Appellant Lisa Christine S. O'Connor, et al., Respondents.

Supreme Court, Appellate Division Second Department.

March 7, 1994.

Mel Spivak, Poughkeepsie, for appellant.

Roosa & Roosa, Beacon, for respondents Lisa Christine Shaw O'Connor and Harry A. Shaw, Jr.

Richard V. Corbally, P.C., Poughkeepsie, for respondent Mary Joan Shaw.

Before BALLETTA, J.P., and O'BRIEN, RITTER and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to SCPA 1001 to obtain letters of administration, the petitioner appeals from an order of the Surrogate's Court, Dutchess County (Benson, S.), entered April 3, 1992, which denied her motion pursuant to SCPA 209(4) and CPLR 3212 for summary judgment determining that the decedent's interest in a mortgage on real property did not constitute a part of the decedent's gross estate, and directed her to file a petition for probate upon a finding that the decedent's will had not been validly revoked.

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, 301 N.Y.S.2d 53, 248 N.E.2d 892; cf., Amend v. Hurley,...