Garfield, C. J.
Brice L. Clutier filed an application in probate alleging that he is a nephew and the only prospective direct heir of W. E. Brice, the incompetent ward; he is incapacitated, because of illness, from obtaining employment; he has no income or other means of support for himself and his wife; his wife is seriously ill and unable to earn; for the last ten years during which W. E. Brice was competent he took great interest in applicant and his family and voluntarily paid the rent on the apartment occupied by them in Chicago and otherwise supported them; such contributions by Brice continued up to the time he became insane; prior to his ineompetency Brice had declared his intention to furnish such support and, if now sane, would be furnishing at least $250 a month for such purpose. The applicant prayed that the guardian be authorized to pay him $250 per month.
The guardian’s answer denied the statements of the application and denied that the court had power to make any such order. Following a hearing at which evidence was offered in support of the application, the court ordered the guardian-to pay the applicant for the care and support of himself, and family $250 per month until further order of the court. The guardian has appealed.
There is practically no conflict in the evidence. W. E. Brice,
then about eighty-one, a man of large means, was adjudged incompetent and appellant was appointed his guardian on January 11, 1941. He has been a patient in a Mason City hospital since September 1940. His attending physician expressed the opinion that his mental incapacity would never improve. The ward is a widower without dependents. He had no children, no brothers, and but one sister, the mother of Brice L. Clutier, the applicant. This sister died in 1915, leaving the applicant, and another son who died in 1920 without having married. The guardian is apparently a responsible and careful business man who was employed by the ward for thirty-five years and was intimately acquainted with his affairs. He was unable to find any will made by Brice.
The applicant is fifty-three. His father, past seventy-six, is employed in a small way by a Chicago bank at $125 a month. The father has no money or property but has contributed from his earnings a dollar a day for the support of applicant and his wife. Formerly, the father had been associated with W. E. Brice as a typist and “errand boy.” The applicant has a married daughter who is unable to contribute to the support of her parents. The applicant had been associated for a time with his uncle as a companion and helper, but received no definite pay. The applicant’s health is poor and his wife is an invalid. He is the victim of fainting spells. He is a veteran of World War I. He has been able to do only about four months’ work in the last ten years during which his total earnings have been $900 to $1,000. In that period his hospital and doctor bills have totaled about $3,600.
A lady who was employed by Mr. Brice for many years as his secretary testified, in substance, that he would always say, “I have Brice [the applicant] on my hands from now on”; he was not' complaining, but that was his customary remark; that her employer very often spoke of his affection for the applicant’s daughter and sent her money. Since March 1926, Brice frequently sent money to the applicant, usually in amounts from $50 to $100, but sometimes as much as $150 to $200.
Checks were found, payable to the applicant personally, made during the last nine years of the ward’s sanity, to the
total average amount of $872 per year. There were other checks payable to the applicant’s father and daughter, apparently for the benefit of the applicant and his family, and substantial sums were s&nt by Mr. Brice to his nephew by money order and telegraph. The total amount of these payments does not appear but a finding would be warranted that it is much larger than the amount of checks payable to the applicant. The guardian testified that Brice said many times that he intended to take care of his nephew as long as he needed assistance; that he felt it his duty to do so.
The personal estate of the ward was appraised at $1,104, 825. This did not include the real estate. When the guardian was appointed in January 1941, there was on hand cash of about $255,000 which was used on December 4, 1941, to purchase United States treasury bills. The gross earned income for 1941 was. $49,693.50. An allowance of $1,500 per month has been made for the support and maintenance of the ward and the upkeep of his home and office.
I. The guardian’s first contention is that the order of allowance amounts to the taking of the ward’s property without his consent, in violation of the due-process provisions of the Federal and State Constitutions (section 1, Fourteenth Amendment, Constitution of the United States, section 9, Article I, Iowa Constitution) and section 1, Article I, Iowa Constitution. It is sufficient answer that no such contention was made in the court below. Constitutional questions cannot be raised for the first time upon appeal. Martin Bros. Co. v. Fritz, 228 Iowa 482, 492, 292 N. W. 143, and cases cited; New York Life Ins. Co. v. Breen, 227 Iowa 738, 750, 289 N. W. 16, and cases cited.
II. It is next argued that the court had no power under the statutes to make the order of allowance.
The question involved upon this appeal has never been passed upon by this court. However, there is considerable outside authority to the effect that courts have wide powers in directing the management of an incompetent’s estate and in a proper casé may authorize an allowance to one to whom the ward owes no legal duty to support. In such matters the court may direct that to be done which the incompetent, if sane, would probably have done. The power of the court in such matters
has been likened to its right to authorize donations by a guardian for charitable purposes to which the incompetent had formerly been in the habit of making contributions. Some of these authorities are Woerner on Guardianship 457; Shelford on Lunatics, 2d Ed. 205; Buswell on Insanity, 120-123, sections 103, 104; 25 Am. Jur. 52, section 79; 32 C. J. 708, section 438; In re Flagler, 248 N. Y. 415, 162 N. E. 471, 59 A. L. R. 649, and annotation 653; Potter v. Berry, 53 N. J. Eq. 151, 32 A. 259, 34 L. R. A. 297, and annotation, 51 Am. St. Rep. 626; Farwell v. Commissioner, 2 Cir., N. Y., 38 F. 2d 791; Sheneman v. Manring, 152 Kan. 780, 107 P. 2d 741; Citizens State Bank v. Shanklin, 174 Mo. App. 639,161 S. W. 341; Hambleton’s Appeal, 102 Pa. St. 50.
In determining whether the incompetent, if sane, would contribute to the support of a relative to whom he owes no duty of support, the court will consider the needs of the relative, the relationship and intimacy which he bore to the incompetent prior to the adjudication of incapacity, the present and probable future requirements of the incompetent himself, whether others are dependent upon him for support and the extent of such dependency, the size and condition of the estate — giving to these and any other pertinent matters such weight as the incompetent, if sane, probably would have given. In re Fleming’s Estate, 173 Misc. 851, 19 N. Y. S. 2d 234, 236, and eases cited.
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Garfield, C. J.
Brice L. Clutier filed an application in probate alleging that he is a nephew and the only prospective direct heir of W. E. Brice, the incompetent ward; he is incapacitated, because of illness, from obtaining employment; he has no income or other means of support for himself and his wife; his wife is seriously ill and unable to earn; for the last ten years during which W. E. Brice was competent he took great interest in applicant and his family and voluntarily paid the rent on the apartment occupied by them in Chicago and otherwise supported them; such contributions by Brice continued up to the time he became insane; prior to his ineompetency Brice had declared his intention to furnish such support and, if now sane, would be furnishing at least $250 a month for such purpose. The applicant prayed that the guardian be authorized to pay him $250 per month.
The guardian’s answer denied the statements of the application and denied that the court had power to make any such order. Following a hearing at which evidence was offered in support of the application, the court ordered the guardian-to pay the applicant for the care and support of himself, and family $250 per month until further order of the court. The guardian has appealed.
There is practically no conflict in the evidence. W. E. Brice,
then about eighty-one, a man of large means, was adjudged incompetent and appellant was appointed his guardian on January 11, 1941. He has been a patient in a Mason City hospital since September 1940. His attending physician expressed the opinion that his mental incapacity would never improve. The ward is a widower without dependents. He had no children, no brothers, and but one sister, the mother of Brice L. Clutier, the applicant. This sister died in 1915, leaving the applicant, and another son who died in 1920 without having married. The guardian is apparently a responsible and careful business man who was employed by the ward for thirty-five years and was intimately acquainted with his affairs. He was unable to find any will made by Brice.
The applicant is fifty-three. His father, past seventy-six, is employed in a small way by a Chicago bank at $125 a month. The father has no money or property but has contributed from his earnings a dollar a day for the support of applicant and his wife. Formerly, the father had been associated with W. E. Brice as a typist and “errand boy.” The applicant has a married daughter who is unable to contribute to the support of her parents. The applicant had been associated for a time with his uncle as a companion and helper, but received no definite pay. The applicant’s health is poor and his wife is an invalid. He is the victim of fainting spells. He is a veteran of World War I. He has been able to do only about four months’ work in the last ten years during which his total earnings have been $900 to $1,000. In that period his hospital and doctor bills have totaled about $3,600.
A lady who was employed by Mr. Brice for many years as his secretary testified, in substance, that he would always say, “I have Brice [the applicant] on my hands from now on”; he was not' complaining, but that was his customary remark; that her employer very often spoke of his affection for the applicant’s daughter and sent her money. Since March 1926, Brice frequently sent money to the applicant, usually in amounts from $50 to $100, but sometimes as much as $150 to $200.
Checks were found, payable to the applicant personally, made during the last nine years of the ward’s sanity, to the
total average amount of $872 per year. There were other checks payable to the applicant’s father and daughter, apparently for the benefit of the applicant and his family, and substantial sums were s&nt by Mr. Brice to his nephew by money order and telegraph. The total amount of these payments does not appear but a finding would be warranted that it is much larger than the amount of checks payable to the applicant. The guardian testified that Brice said many times that he intended to take care of his nephew as long as he needed assistance; that he felt it his duty to do so.
The personal estate of the ward was appraised at $1,104, 825. This did not include the real estate. When the guardian was appointed in January 1941, there was on hand cash of about $255,000 which was used on December 4, 1941, to purchase United States treasury bills. The gross earned income for 1941 was. $49,693.50. An allowance of $1,500 per month has been made for the support and maintenance of the ward and the upkeep of his home and office.
I. The guardian’s first contention is that the order of allowance amounts to the taking of the ward’s property without his consent, in violation of the due-process provisions of the Federal and State Constitutions (section 1, Fourteenth Amendment, Constitution of the United States, section 9, Article I, Iowa Constitution) and section 1, Article I, Iowa Constitution. It is sufficient answer that no such contention was made in the court below. Constitutional questions cannot be raised for the first time upon appeal. Martin Bros. Co. v. Fritz, 228 Iowa 482, 492, 292 N. W. 143, and cases cited; New York Life Ins. Co. v. Breen, 227 Iowa 738, 750, 289 N. W. 16, and cases cited.
II. It is next argued that the court had no power under the statutes to make the order of allowance.
The question involved upon this appeal has never been passed upon by this court. However, there is considerable outside authority to the effect that courts have wide powers in directing the management of an incompetent’s estate and in a proper casé may authorize an allowance to one to whom the ward owes no legal duty to support. In such matters the court may direct that to be done which the incompetent, if sane, would probably have done. The power of the court in such matters
has been likened to its right to authorize donations by a guardian for charitable purposes to which the incompetent had formerly been in the habit of making contributions. Some of these authorities are Woerner on Guardianship 457; Shelford on Lunatics, 2d Ed. 205; Buswell on Insanity, 120-123, sections 103, 104; 25 Am. Jur. 52, section 79; 32 C. J. 708, section 438; In re Flagler, 248 N. Y. 415, 162 N. E. 471, 59 A. L. R. 649, and annotation 653; Potter v. Berry, 53 N. J. Eq. 151, 32 A. 259, 34 L. R. A. 297, and annotation, 51 Am. St. Rep. 626; Farwell v. Commissioner, 2 Cir., N. Y., 38 F. 2d 791; Sheneman v. Manring, 152 Kan. 780, 107 P. 2d 741; Citizens State Bank v. Shanklin, 174 Mo. App. 639,161 S. W. 341; Hambleton’s Appeal, 102 Pa. St. 50.
In determining whether the incompetent, if sane, would contribute to the support of a relative to whom he owes no duty of support, the court will consider the needs of the relative, the relationship and intimacy which he bore to the incompetent prior to the adjudication of incapacity, the present and probable future requirements of the incompetent himself, whether others are dependent upon him for support and the extent of such dependency, the size and condition of the estate — giving to these and any other pertinent matters such weight as the incompetent, if sane, probably would have given. In re Fleming’s Estate, 173 Misc. 851, 19 N. Y. S. 2d 234, 236, and eases cited.
While courts should act cautiously in making an allowance to one whom the incompetent is under no legal duty to support, having in mind at all times the welfare of the ward, this case seems properly to fall within the rule of these authorities. The ward, now over eighty-two and without dependents, appears to be incurably insane. So far as possible, all his needs and comforts are provided for. The estate is well in excess of a million dollars. The applicant is destitute. He and his wife are unable to work. The trial court found that the incompetent, in all probability, if sane, would provide for the support of the applicant and his family. There is ample evidence to support the finding. This is a probate matter not triable de novo here. In re Estate of Hale, 231 Iowa 1018, 2 N. W. 2d 775, 779, and cases cited.
The probate court had full jurisdiction of the estate of this ward. The property was in custodia legis subject to the orders of the court. Haradon v. Boardman & Cartwright, 229 Iowa 540, 546, 294 N. W. 770. We think there is statutory authority for the making of the order. Section 12581, Code, 1939, made applicable to" such a guardianship as this by section 12613, provides :
“Guardians * * * must prosecute and defend for their wards, may employ counsel therefor, lease lands, loan money, and in all other respects manage their affairs, under proper orders of the court or a judge thereof.”
We have frequently recognized that this statute is the important broad provision governing the powers and duties of a guardian to act under the supervision of the probate court. Speaking of substantially the same provision as section 12581 (section 2250, Code, 1873), it is said, in Bates v. Dunham, 58 Iowa 308, 310, 12 N. W. 309, 310:
“The powers which the guardians of property possess are conferred in section 2250.”
It is our duty, by express legislative command, to construe this statute liberally, “with a view to promote its objects and assist the parties in obtaining justice.” Section 64, Code, 1939.
We have held that the purchase of real estate with funds belonging to the ward amounts to'the management of the ward’s estate. Kowalke v. Evernham, 210 Iowa 1270, 1274, 232 N. W. 670. Also that the court has the power to order a guardian to purchase real estate with funds of the ward. In re Estate of Wisner, 145 Iowa 151, 153, 123 N. W. 978. We have also held that, even in determining the
nature
and
scope
of the expenditures of a guardian which may be properly approved, the court is vested with considerable discretion. Des Moines Sav. Bk. v. Krell, 176 Iowa 437, 441, 442, 156 N. W. 858; In re Guardianship of Fish, 220 Iowa 1328, 1333, 264 N. W. 542. We think the making of these payments to the applicant under the facts shown here, as authorized by this order of the probate court, properly falls within the management of the ward’s affairs.
III. The guardian also contends that the order was not justified under the evidence, eveif assuming the power of the court to make it. It is argued that it does not sufficiently appear that the incompetent, if sane, would probably have contributed as much as $250 a month for the applicant’s support. It is true the evidence does not disclose the exact amount contributed by Mr. Brice while sane for the support of the applicant and his family. And there is no way of knowing just how much the ward would now contribute if insanity had not overtaken him. However, if the probate court had authority to act in the matter, it had at least some discretion in determining the amount to be paid. The order is effective only until the further order of the court. We are not prepared to hold under the record that there was an abuse of discretion.
IY. It is contended the court erred in that it does not appear that these payments can be made out of the surplus income from the estate but that resort to the principal may be necessary.
In most of the cases where allowances from guardianship funds have been authorized for the support of one whom there is no legal duty to support it is probably true that the payments could be made from surplus income. The more recent authorities, however, apparently do not limit the payments which may be authorized to those that can be made out of surplus income. The controlling principle is that the court will act with reference to the incompetent and for his benefit as he would probably have acted if sane. In re Fleming’s Estate, 173 Misc. 851, 19 N. Y. S. 2d 234, holds that such payments may be' made even though resort to the principal is necessary. However, payments to one holding no legal obligation against the incompetent should not be authorized unless adequate provision has first been made for the ward.
We find it unnecessary to determine whether such an allowance should be made out of the principal of the ward’s estate. It is probable that these payments can be made out of the surplus income without resort to the principal. In any event, it is certain that neither the ward nor his large estate will ever suffer because of these comparatively small payments.
This case was tried in April 1942, after the guardianship had been in effect a little more than fifteen months. As stated, the income from the estate for the first year was nearly $50,000. And about $255,000 in cash, or nearly one fourth the personal estate, seems to have been uninvested until December 4, 1941, when United States treasury bills were purchased at a priee yielding but 1%oo °f one per cent. Such large nonrecurring expenditures were made during the first year that it is hard to ascertain just what the net surplus income was in 1941 or will be in the future. But it will be surprising if there is not sufficient income left from this estate of well over $1,000,000, after supplying the wants of this insane man and paying taxes and expenses of the guardianship, to make these payments to the applicant without resort to the principal.
Y. The court allowed the applicant $50 to cover the expense of himself and wife in attending the hearing. They live in Chicago. The guardian attacks this provision of the order because the application did not specifically ask for such relief. The application did ask that the costs of the hearing be paid by the guardian. We are cited to cases holding that a judgment cannot be rendered for an amount greater than asked in the petition. We are not disposed to hold, on the ground that the prayer of the application did not specifically ask therefor, that this allowance of expense money was improper. Sufficient basis for our conclusion is that the technical rules of pleading are not strictly applied in a probate matter such as this. Soppe v. Soppe, 232 Iowa 1293, 8 N. W. 2d 243, 245, and cases cited.
The order is — Affirmed.
Bliss,- Olivee, Halb, and Muleoney, JJ., concur.
Wenneesteum, Miller, Smith, and Mantz, JJ., dissent.