This section contains the nature of the case and procedural background.

Ps seek reimbursement for the mortgage payments they have paid since the decedent's date of death, with interest from the date of each such payment. Ps allege that at some time during the summer months of 2006, discussions began between them and the decedent regarding a multi-unit apartment building that was owned by the decedent. The decedent was looking for someone to take over the management and/or ownership of this rental property for him. Ps allege that they entered into an agreement with the decedent wherein it was agreed that Ps would accept title to the property with a reservation of a life estate to the decedent. Further, it was agreed that the Ps would take over all of the management responsibilities for the decedent during his lifetime in exchange for the decedent's promise to pay off a mortgage that existed on the property at the time of his death from assets remaining in his estate. This mortgage which was in the original amount of $100,000, had been taken against the property by the decedent in 2001. Ps allege that the decedent used the proceeds of the mortgage to make cash gifts to six family members, including Ps, who in turn invested this money into the Stadium Golf Course, a family-run business. The decedent refinanced the mortgage with Trustco Bank in 2003. Over the course of time but prior to September 2006, four of the six family members separated from the business, at which time the money they respectively invested was paid back to them by Ps. Ps stayed with the business and continued to run the business to this day. Ps had full knowledge of the mortgage and the purpose for which the proceeds were used by the decedent. They were not willing to assume the outstanding balance of the mortgage or be personally obligated to this debt because they had their own debts, in part, from buying the other family members out of the business. Ps contend that if they assumed the mortgage, they would in essence be subsidizing the gifts made by the decedent to the other family members from the mortgage proceeds, which they viewed as, in essence, paying the debt twice. Ps claim that they only agreed to accept title with the above-noted encumbrance and requisite management responsibilities of the property because of the decedent's promise that the mortgage balance remaining at the time of his death would be paid off by his estate, terms to which the decedent purportedly agreed. The family's attorney, Frank Parisi, was contacted for the purpose of preparing the necessary legal documents. Decedent signed a warranty deed conveying title to the property to the petitioners, reserving a life estate for himself. The deed contained the standard covenant language that 'the parties of the second part [the petitioners] shall quietly enjoy the same premises,' and that 'the party of the first part [the decedent] will forever warrant the title to said premises.' The deed did not contain an assumption of a mortgage clause. The deed was properly notarized by attorney Parisi and later recorded in the Schenectady County Clerk's Office. The signed RP-5217 form indicates that the transfer is between relatives, and does not state a sales price. The signed TP-584 form reports that there is no continuing lien deduction and that the transfer is not subject to an outstanding credit line mortgage. Decedent executed a last will and testament. Its fifth article stated: 'I direct that the mortgage on the property at 233 Jackson Avenue, Schenectady, New York, if any, in existence at the time of my death shall be paid from the assets of my estate.' These were the only documents that were signed that day. Decedent gave Ps a personal check with which to open a bank account for the management of the property. Ps took over and assumed all of the management responsibilities of the property, thereby permanently. Ps used the initial deposit monies to pay the taxes on the property as well as the monthly mortgage payment then due. Ps continued to use this account to deposit the rent proceeds from the property and pay all of the bills associated with the property. All of these responsibilities of the property consumed much of Ps' time, for which they received no compensation. It was by all accounts a 'break even business.' From September 2006 until Decedent's death on December 1, 2010, Decedent continued to reside in one of the apartments rent-free, and free of all property management responsibilities. Two years after the deed and will were executed Decedent went to a different attorney (the attorney who represents the executrix (D)) and executed a new will on October 22, 2008. The new will does not contain the same language that appears in article fifth of the September 22, 2006, will or anywhere mention the Jackson Avenue property or the mortgage existing thereon. The 2008 contains the general provision in its first article that the decedent 'direct[s] payment of any and all just debts and funeral expenses as soon as practicable after [his] death.' D rejected Ps' claim for payment of the outstanding mortgage. Ps brought this present proceeding.

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