(concurring and dissenting) :
With that part of the main opinion which sustains the trial court in its appointment of a guardian, I concur. From that part of the main opinion which reverses the trial court’s judgment declaring the will and trust deed executed in January, 1972, to be void, I dissent. The main opinion says that the only issue raised and tried in the proceeding was the incompetency “in recent months and that particularly within the past two months by reason of her old age and physical infirmities.”
The trial court had before it evidence of Mrs. Cornia’s activities from the date of her husband’s death until the date of trial. Part of this evidence, advanced by the cross-appellant, was the statement that Mrs. Cornia never has taken care of her own affairs. The sum total of the proof produced believable evidence, upon which the trial court arrived at its decision; that not only should the petition for guardianship be granted, but that the prior conveyances and testamentary disposition should not be operative.
It appears apparent that all of these issues were tried by implied consent, and a judgment was rendered thereon. Our practice provides for, and allows this.1 The rule is, “When issues not raised by the pleading are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings . . . failure ... to amend does not affect the result of the trial of these issues.” I submit there is substantial basis in the evidence for the findings and judgment of the trial court, thus its judgment should be sustained.
TUCKETT, J., concurs in the views expressed in the opinion of MAUGHAN, J.. Rule 15(b), U.R.C.P.