In re Guardianship and Conservatorship of Loyola Jane Kaiser, an incapacitated and protected person.
PAULA KAISER-ASMUS and Carol Harris, APPELLEES. Heartland Trust Company, Conservator, APPELLANT,
Guardians and Conservators: Appeal and Error. An appellate
court reviews guardianship and conservatorship proceedings
for error appearing on the record in the county court.
Judgments: Appeal and Error. When reviewing a judgment for
errors appearing on the record, an appellate court's
inquiry is whether the decision conforms to the law, is
supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable.
Statutes: Appeal and Error. Statutory interpretation presents
a question of law, for which an appellate court has an
obligation to reach an independent conclusion irrespective of
the decision made by the court below.
Statutes: Legislature: Presumptions. In enacting an
amendatory statute, the Legislature is presumed to have known
the preexisting law.
Statutes: Appeal and Error. Statutory language is to be given
its plain and ordinary meaning, and an appellate court will
not resort to interpretation to ascertain the meaning of
statutory words which are plain, direct, and unambiguous.
Statutes. It is not within the province of the courts to read
a meaning into a statute that is not there or to read
anything direct and plain out of a statute.
from the County Court for Fillmore County: Michael P. Burns,
H. Murray, PC, L.L.O., of Germer, Murray & Johnson, for
N. Bixby and Paul N. Bixby, Senior Certified Law Student, of
Bixby Law Office, for appellees.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
appellant, Heartland Trust Company (Heartland), was appointed
as the conservator for Loyola Jane Kaiser. After the death of
Loyola's husband, Albert A. Kaiser, Heartland filed an
application in the county court for Fillmore County seeking
authority to file the elective share it stated was due to
Loyola as Albert's surviving spouse. After a hearing, the
county court denied Heartland's application. Heartland
appeals. We affirm.
and Loyola were married and had one child together, Paula
Kaiser-Asmus (Paula). Loyola had two children from a previous
marriage, James Votipka (James) and Carol Harris (Carol). The
record does not specifically indicate when Albert and Loyola
were married, but the county court noted in its order that
"Paula was born in 1959, suggesting that the marriage
between Albert and Loyola . . . spanned over many
and Loyola both executed wills on December 16, 2005, and
these wills appear to mirror each other. The wills provided a
life estate to the surviving spouse for certain property and
devised all the residue of their property interests to the
surviving spouse. They both also devised remainder interests
in certain property to James, Carol, and Paula.
did not modify her 2005 will, but Albert executed a new will
and a living trust on March 19, 2014. Albert's 2014 will
named Loyola as his spouse, Paula as his child, and Carol as
his spouse's child, and it stated that "[a]ll
references to 'my children' in this Will are to these
children." Albert's 2014 will further stated:
"My spouse has a son, JAMES . . .; that I have
intentionally and with full knowledge chosen not to provide
for him or his descendants." Albert's 2014 will
distributed all of his property into his living trust.
to his 2014 will, Albert's living trust identified Loyola
as his spouse, Paula as his child, and Carol as his
spouse's child, and it stated that "[a]ll references
to 'my children' in this Agreement are to these
children." The living trust specifically excluded James,
stating that Albert had "intentionally and with full
knowledge chosen not to provide for [James] or his
descendants." "Article Nine" of Albert's
living trust is titled "Distribution of My Trust
Property, " and it specifically designated Paula and
Carol as the only two beneficiaries of the trust, with each
receiving a 50-percent share of the trust upon Albert's
death. Neither Loyola nor James were included as a
beneficiary of Albert's trust.
23, 2014, while Albert was still alive, the county court
filed an order and letters in which it appointed ...