In re the Estate of Stiles

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Decedent died nine days after she and respondent executed a separation agreement containing language that "clearly and unequivocally manifests an intent on the part of the spouses that they are no longer beneficiaries under each other’s wills” (Matter of Maruccia, 54 NY2d 196, 205; cf., Matter of Chmiel, 164 Misc 2d 854; Matter of Foundas, 112 Mise 2d 973). Because the separation agreement revoked the testamentary disposition of decedent to respondent in a joint will executed by them in 1983, the Surrogate erred in not granting petitioner’s motion for summary judgment. We modify the order accordingly despite the absence of a cross appeal (see, Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-112). (Appeal from Order of Niagara County Surrogate’s Court, Hannigan, S.— Summary Judgment.) Present—Denman, P. J., Pine, Fallon, Doerr and Balio, JJ.