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Under the facts and circumstances of the case before this
Court, we find that the mistake in the 1984 deed conveying
decedent's entire interest in the Weinstock Residence was a
scrivener's error which was not noted by either of the parties at
the time of execution of the deed. Moreover, this mistake
violated the manifest intention of the parties to the deed. We
do not think that a scrivener's error in describing the
fractional interest to be conveyed in a gratuitous transfer of
real estate, as in the case at bar, is so different from the
scrivener's error in describing the particular lot to be conveyed
in the gratuitous transfer in Curry. We believe that the Supreme
Court of Georgia would, under the facts and circumstances of this
case, find that the original 1984 transfer passed only bare legal
title to decedent's entire interest in the property and that,
immediately after such transfer, decedent had the unqualified
right, as against the donees, to defeat the transfer as to the
extent of six-ninths thereof. Therefore, under the law of
Georgia, we find that decedent would have had a right to reform
the deed to express the agreement of the parties.
Thus, we find that in 1984 the donees were given complete
ownership of three-ninths of decedent's interest in the property
and bare legal title to the other six-ninths. Decedent had the
right, after the 1984 transfer, to revest in herself title to
that six-ninths interest. She could take it back at will. The
fact that her power was dehors the instrument, rather than
expressed in the instrument itself, is immaterial. Helvering v.
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