In reviewing general judgments issued in a civil case tried to the bench, we ask only whether there is substantial evidence of probative value supporting the judgment on any legal theory.
How later courts described this case
- In reviewing general judgments issued in a civil case tried to the bench, we ask only whether there is substantial evidence of probative value supporting the judgment on any legal theory.
Written by the judges who cited it.
The opinion
STATON, Judge,
dissenting.
I dissent from the Majority Opinion for the following reasons:
1. The trial court acted without any statutory authority when it ordered the guardian not to elect to take against the will.
2. The order of the trial court is absolutely against the statutory framework of guardianships and decedents’ estates.
3. The order and actions of the trial court violated Grace Foman’s right to elect against the will of her deceased husband.
4. The trial judge is attempting to function as guardian of Grace Foman and as the judge administering the estate. This is an obvious conflict of interest, and a conflict which has proven very injurious to Grace Foman’s best interests.
What a statute does not say is just as important as what it does say. Bonge v. Risinger, 511 N.E.2d 1082, 1084 (Ind.Ct.App.1987). Here, Ind.Code § 29-1-3-4 (1993) provides that only the surviving spouse can exercise her election to take against the will. Where the spouse is unable to make the election and is a protected person, the statute makes an exception. The exception permits the court to “order the guardian of the spouse’s estate to elect for the spouse.” Id. Nowhere in the statutes is there a provision allowing the trial court to order the guardian how to elect for the spouse. This is an addendum of the trial judge’s own making which not only conflicts with Grace Foman’s best interests but conflicts with the constitutional power of the legislature.
Grace Foman’s son has been appointed as her guardian. Included within the guardian’s responsibilities are the care and custody of the protected person as well as her property. Ind.Code § 29-3-8-1 (1993). This requires the guardian to familiarize himself with the protected person’s “capabilities, disabilities, limitations, needs, opportunities, and physical and mental health.” 1C 29-3-8-l(a)(l). It is obvious that the trial court has not qualified as the guardian under the aforesaid statute and should not be attempting to substitute its will over the judgment of the duly appointed and qualified guardian. By electing to take against the will, Grace Foman would receive one-third of her deceased husband’s estate, or one third of $200,000.00, compared to $5,000.00 under the will. In attempting to exercise his responsibility of acting in the best interests of his mother, the guardian has been stymied by the trial court which is acting without statutory authority.
Another observation that deserves note. The Majority relies on language used In re Estate of Covell, 540 N.E.2d 74 (Ind.Ct.App.1989), trans. denied. Coveil made the same mistake as the Majority by reading language in the statute that does not exist. The language taken from Covell, which purports to recognize the duty of the trial court to supervise and approve a guardian’s actions in the factual context of this case, is completely *1122 unsupported by any citation to authority. Quite simply, that is because no such authority exists.
I would reverse the trial court, but I would not instruct the judge who has already shown his bias to hold a hearing and to receive evidence so that he can decide whether the election is in Foman’s best interests. During the probation of an estate, an election to take against the will does not require a separate hearing to decide if the election is in the best interests of the person making the election. Guardianships are a separate and distinct legal proceeding. If proper proceedings are initiated in the guardianship, the trial judge who has already made his bias known should disqualify himself.