Whittlesey v. Gerding

• Decision Date: 27 July 1922
• Docket Number: No. 22058.,22058.
• Citation: 246 S.W. 308
• Parties: WHITTLESEY et al. v. GERDING et al.
• Court: Missouri Supreme Court

246 S.W. 308

WHITTLESEY et al. v. GERDING et al.

No. 22058.

Supreme Court of Missouri, Division No. 1.

July 27, 1922.

Motion for Rehearing Overruled December 18, 1922.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

Will contest by Chas. F. Whittlesey and another against Mabel Gerding and others. From a judgment on a directed verdict for defendants, plaintiffs appeal. Reversed and remanded.

William Zachritz and Harmon J. Bliss, both of St. Louis, for appellants.

Harry A. Frank, of St. Louis, for respondents Granville and Granette Elizabeth Gerding.

Willard H. Guest and Gustave A. Stamm, both of St. Louis, for respondents Mabel Gerding and William Ambrose Smith.

Frederick Vierling and A. H. Roudebush, both of St. Louis, for respondent Mississippi Valley Trust Co.

Jamison & Thomas, of St. Louis, for respondent Masonic Home of Missouri.

ELDER, J.

This is a suit by Charles Frederick Whittlesey and Comfort Star Whittlesey to contest the will of their deceased brother, Granville Elisha Whittlesey, who died childless and a widower on December 24, 1917. The contestants are the sole heirs at law of the deceased. The grounds of contest alleged in the petition are mental incapacity and undue influence, the latter averred to have been exercised by defendant Mabel Gerding.

The will was executed by the testator on December 7, 1917. Appended thereto are two codicils bearing the same date as the date of the will. For the purposes of this review we deem it unnecessary to reproduce the will and codicils in full, as the same are quite lengthy. Substantially the will provides for a bequest to plaintiff Charles Frederick Whittlesey of "6500 out of the proceeds of my policy in the Protected Home Circle; also the sum of $250;" also all unpaid notes, secured by deed of trust on property at 4557 Newport avenue. To plaintiff Comfort Star Whittlesey is bequeathed "the remaining portion of the proceeds of my said policy for $1,000 in the Protected Home Circle." To Dr. William Ambrose Smith is bequeathed "all my electrotherapeutic apparatus, surgical instruments and drugs." To defendant Granville Elisha Gerding, minor son of defendant Mabel Gerding, is bequeathed a phonograph, desk, microscope and other articles of personal property. To defendant Mabel. Gerding is bequeathed all remaining household furniture and effects in the residence of the deceased. All the rest and residue of the estate, real, personal and mixed, is devised and bequeathed to the Mississippi Valley Trust Company of St. Louis, in trust for the benefit of defendants Granville Elisha Gerding and Granette Elizabeth Gerding, minor children of defendant Mabel Gerding, upon certain conditions fully set forth, with power of sale, investment, reinvestment, etc., in the trustee. In the event of the death of both of said beneficiaries during the continuance of the trust, the same is to terminate and the undistributed estate is to be paid over to the Masonic Home of Missouri. Codicil number one gives certain jewelry to Granette Elizabeth Gerding and Granville Elisha Gerding, and codicil number two bequeaths the deceased's books and bookcases to the trustee to be held for Granville Elisha Gerding until he has "attained the age and capacity to use, enjoy and preserve said books, whereupon said books and bookcases shall be delivered to him."

Formal proof of the execution of the will and the two codicils was Made by the subscribing witnesses, who testified that at the time of execution thereof the testator was of sound mind.

The evidence adduced shows that the testator was about fifty-five years of age at the time of his death, that Comfort Star Whittlesey was two years younger, and that Charles Frederick Whittlesey, the remaining brother, was about three years older; that the deceased had been a practicing physician in the city of St. Louis for some years before he died; that prior to locating in St. Louis he had had a varied career, having run away from home while a boy, practiced photography for a while, studied for the priesthood for a short time, posed as a gypsy doctor, acted as agent for a circus, and become a spiritual healer. The record shows him in childhood at Washington. D. C.: then successively at Toledo, Ft. Wayne, New York City, Chicago, Omaha, and for some time in the South preaching. He saw his two brothers somewhat infrequently, but at times corresponded with them. Comfort Star saw him in Chicago in 1893, visited him for a few days in 1903, and in 1907 spent about two months with him at his home in St. Louis. Charles Frederick, while he corresponded with him, had not seen him for about thirty years prior to 1915, when he (Charles Frederick) moved to St. Louis. After that time he called on the deceased "on an average of about twice a week." The relations between the two brothers and the deceased seems to have been friendly at all times.

During the year 1906, the testator's wife, to whom he was greatly attached, died during pregnancy, as the result of an accidental fall. Her death grieved him greatly and he claimed to commune with her spirit almost daily in the room in which she died. In mourning the loss of his wife he would at times break down and cry "as though his heart would break," and often talked of taking his own life. According to the testimony of the brother Charles Frederick, he attempted to commit suicide about December 10, 1917, by taking poison. It is admitted that on December 24, 1917, he did commit suicide by shooting himself with a revolver, leaving an estate valued at from $15,000 to $30,000.

Upon the issue of mental incapacity the salient testimony was as follows: Comfort Star Whittlesey testified that the testator had once written him that "he was going to fast forty days and that he wanted to get in the astral body, * * * that he could not commune with so many spirits unless he got into the astral body and the only way he could do that was by fasting forty days. Afterwards I got a letter from him and he didn't fast forty days; he fasted, I think it was thirty days"; that while in the South testator went preaching "as Schlatter did, you know—he went all over the country representing himself as Christ, and Granville did the same way"; that testator told witness that "he had the same power that Christ had"; that while witness lived with testator in 1907 testator always carried two revolvers and kept them with him in bed at night; that he would often say, "they are after me, they want to kill me"; that testator often told witness that he communicated with his deceased wife. Referring to his visit to the testator's home the witness stated:

"He sent me the money with which to come. I roomed with him here at his request. He said he wanted me to come down here because he didn't expect to live. * * * I talked with him that I didn't want any of his money, but he would try to make me feel that us boys would get his property; he sent there for me to come to be his administrator—he was going to turn everything over to me."

Charles Frederick Whittlesey testified that when he visited testator from 1915 on, testator told him that he did his own cooking, saying, "You won't catch me eating out anywhere, they will poison me"; that on innumerable times testator had told him "that there was parties going to Ian him," and on being asked by witness as to who said parties were testator replied, "Never mind, that is all right, but I will tell you I can hear them talking—just heard the other night when they fingered around in front of my place— came around there and I heard them talking about killing me and one of the men said to the woman, `Now is your chance; go in and tell him'; she said, `What's the use of telling him; he will deny it'"; that testator said that on one occasion two policemen "stood right out there in front of his place and spoke of taking his life"; that at times testator "ran up and down the room like a lion unharnessed"; that testator in speaking of fasting said, "I will tell you why I don't have to eat like some people; there is one man in particular who used to eat a hearty meal before he came over here; I can get alongside of that man and stand for a few moments and I will absorb every bit of nourishment that that man had in his body and he will go away litingry"; that whenever testator spoke of his wife "the man went simply crazy," and that testator said "life would be nothing to him if ne could not commune with his wife's spirit every day"; that when witness would call upon testator he would always "have one or more guns in his pocket"; that when witness went to the home of defendant Mabel Gerding after testator's death he said to her, "Gran is as crazy as a bat," and that defendant replied, "I know it, Fred; I thought so for a long time." This statement of defendant was later held by the court to be incompetent and the jury were directed to disregard it, plaintiffs excepting to the ruling of the court. On cross-examination, witness, in speaking of testator's property, stated, "I should judge he knew of the property he owned." On redirect examination witness stated that testator had told him that he was a spiritualistic healer and often effected a cure by taking onto himself the ailments of the patient and that in doing that it weakened him in body and mind and he had to quit it"; that testator said "the spirits were bigger liars than we are"; that testator said the spirits did all that he wanted, saying, "You see all this furniture, all those heavy books and bureaus, beds, I can stay here and at the command of the spirits I can have everything moved that is on this floor."

Dr. E. R. Waterhouse, who lived opposite the testator, and had observed him frequently and conversed with him, testified that testator said that "any woman that would marry was the lowest kind of prostitute"; that he spoke disparagingly of the chastity of women and advocated free love; that he had said he "could cure all diseases without...