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Orcutt v. Hoyt

Decided: May 2, 1950.

BRENT GOOD ORCUTT, PLAINTIFF,
v.
ANNA ORCUTT HOYT, AND BARBARA M. COLWELL, INDIVIDUALLY, AND HENRY H. HOYT, DONALD R. BALDWIN AND CURTIS COLWELL, EXECUTORS OF THE LAST WILL AND TESTAMENT OF KATE GOOD ORCUTT, DECEASED, DEFENDANTS



Stein, J.s.c.

Stein

[8 NJSuper Page 430] This is a suit brought by the plaintiff, Brent Good Orcutt, against the executors of the estate of his mother, Kate Good Orcutt; his sister, Anna Orcutt Hoyt; and Barbara M. Colwell for the recovery of a ring which he

contends was bequeathed to him under the Second Article of his mother's will, and prays that a constructive trust be declared and the ring delivered to him in satisfaction of his mother's bequest.

Kate Good Orcutt died on March 23, 1947, leaving a last will dated January 11, 1947, duly probated.

By the Second, Third and Fourth Articles of her will testatrix disposed of her jewelry, as follows:

"SECOND: I give and bequeath unto my son, BRENT GOOD ORCUTT, my large diamond solitaire ring as and for his absolute property.

"THIRD: I give and bequeath unto my daughter-in-law, ETHEL BURTON ORCUTT, my diamond and opal necklace and my opal brooch surrounded by diamonds and my opal dinner ring as and for her absolute property.

"FOURTH: All the remainder of my jewels and jewelry, I give and bequeath unto my daughter, ANNA ORCUTT HOYT, if she survive me, but in the event she should die before me, I give and bequeath the same unto my granddaughter, SUZANNE KATE HOYT."

At the time of the execution of the will and on the date of her death testatrix had in her possession a number of items of jewelry but among them were only two rings which could be described as solitaires, so that one or the other of these rings must have been the ring indicated in the Second Article of her will.

The inventory of the estate (which is attached to the complaint) contains the following description of these two rings. First a "platinum ring set with a marquise diamond, weighing approximately 4.5 carats," $2,250, and the second is described in the inventory as a "gold ring set with a solitaire diamond, weighing approximately 1.50 carats (diamond is 'old-mine-cut' and of poor quality and imperfect)," $300.

The executors delivered to the plaintiff the gold ring set with a solitaire diamond of approximately 1.50 carats, indicating they did so pursuant to the Second Article of the decedent's will, and after satisfying the specific bequest in the Third Article, delivered to plaintiff's sister, Anna Orcutt Hoyt, the remainder of the jewelry, comprising over 30 items,

pursuant to the Fourth Article of the will. Included in the items delivered to Mrs. Hoyt, the wife of one of the executors, was the platinum ring set with a marquise diamond of approximately 4.5 carats, and it is this ring which is claimed by the plaintiff in this action. Subsequently, this ring was given by Mrs. Hoyt to Barbara M. Colwell, the wife of another executor, Curtis Colwell, and as ...


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