Opinion
November 8, 1996.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following
Before: Present — Denman, P.J., Pine, Fallon, Doerr and Balio, JJ.
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 Mise 2d 854; Matter of Foundas, 112 Mise 2d 973). Because the separation agreement revoked the testamentar y 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.)