7. CONSTITUTIONAL LAW (3 278*) - TESTA- | the commonwealth, and by publication in one MENTARY TRUSTS STATUTORY RULES FOR

1

8. ABSENTEES (§ 3*) ABANDONMENT OF PROPERTY BENEFICIARIES UNDER TESTAMENTARY TRUST-REMEDIES.

The Legislature having determined, by St. 1905, c. 326, that property withdrawn from ordinary channels of use by the beneficial owner's absence or disappearance should be distributed as an intestate estate, section 10, expressly making the statute retroactively applicable to existing trustees, is a constitutional exercise of legislative power.

[Ed. Note.-For other cases, see Absentees, Cent. Dig. 2; Dec. Dig. § 3.*]

9. CONSTITUTIONAL LAW (§ 186*)-RETROACTIVE LAWs.

Retroactive laws are not forbidden by either the state or the federal Constitution; and where by express terms they are made to apply to existing conditions, that of itself does not render them void, if not otherwise objec

tionable.

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 526-529; Dec. Dig. § 186.*]

or more newspapers within the commonwealth within 30 days after the order, and in the place of the last known residence or abiding place of the absentee if within the United States, within 60 days after the order, the return day of which shall be not less than 6 months after the order. All the world are made parties and shall be conIcluded by the decree. A guardian ad litem is to be appointed for the absentee and for all others under disability or absent or unascertained or not in being who may have an interest in the fund. The new trustees each are required to give a bond, with or without sureties, as the court may direct, conditioned to repay to the absentee if alive, or the persons claiming under him, the fund received by such trustee less his disbursement and compensation, but all actions in any form in behalf of the absentee to recover the fund are barred after 6 years from filing the bond. The original trustee is barred of all further liability upon payment to the new trustees thus appointed. In substance, the statute provides that, where a trust created by will is held by a trustee appointed by our courts, and the beneficiary has been absent and unheard of for fourteen years, the fund may be distributed

Appeal from Supreme Judicial Court, Mid- among his heirs at law as if he had deceased dlesex County.

Petition by Alfred A. Adams and others against Edward E. Adams, trustee, and othDecree for petitioners, and defendants appeal. Affirmed.

ers.

at the end of the 14 years from disappearance, upon their giving bond therefor.

[1] The absentee did not appear in the case at bar. The guardian ad litem appealed from the decree of the probate court, but the

Walter N. Buffum, for appellants. Bout-only argument has been presented by the well & Hastings and E. P. Miller, for appel

lees.

original trustee. The interests of these persons appear to permit them to raise objections to the decree. Southern Ry. Co. v. King, 217 U. S. 524-534, 30 Sup. Ct. 594, 54 L. Ed. 868.

RUGG, C. J. This is a petition for the appointment of trustees and the distribution among them of a trust estate in accordance [2, 3] The constitutionality of the statute with the provisions of St. 1905, c. 326. The is attacked on the ground that it deprives salient features of that act are that after the absentee of his property without due profourteen years from the date of disappear- cess of law in contravention of the fourance, absconding or absence from the state of teenth amendment to the federal Constitua beneficiary of a trust created by will, tion and does not afford him the protection wherein a trustee has been appointed by a in his property which is guaranteed by our probate court of this commonwealth, any own Constitution. Treating both these conperson who would be interested in such tentions in their broader aspects, they are trust, if the absentee was dead, may petition concluded in favor of the petitioner by Nelson to the probate court for a transfer of the v. Blinn, 197 Mass. 279, 83 N. E. 889, 15 L. R. trust fund and its accumulations "to the A. (N. S.) 651, 125 Am. St. Rep. 364, 14 Ann. persons as trustees who would be entitled to Cas. 147, s. c., 222 U. S. 1, 32 Sup. Ct. 1, 56 L. such trust estate if such absentee had died Ed. -; Atty. Gen. v. Provident Inst. for within this commonwealth on the day four- Savings, 201 Mass. 23, 86 N. E. 912, s. C., teen years after the date of his disappear- | 221 U. S. 660, 31 Sup. Ct. 661, 55 L. Ed. 899, ance and in the proportion to which each would be entitled."

Elaborate and minute provisions are made for a full description of the estate and of all persons alleged to have an interest in it and for full service of the notice thereupon (which shall contain the substance of the petition) personally upon all parties resident in

34 L. R. A. (N. S.) 1129; Cunnius v. Reading School Dist., 198 U. S. 458, 25 Sup. Ct. 721, 49 L. Ed. 1125, 3 Ann. Cas. 1121, s. c., 206 Pa. 469, 56 Atl. 16, 98 Am. St. Rep. 790.

The essence of these decisions is that property abandoned by its owner may be taken into custody of law and distribution of it declared among those who would be the

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

heirs of absentee if he were deceased, all under reasonable limitations as to length of absence, precedent notice and safeguards for the security of the property.

[7] The establishment of reasonable rules for administration of trusts under wills cannot be treated as beyond the power of the Legislature. In cases arising under this statute, the property is already in the hands of a trustee appointed by the court. Being in the possession of a responsible officer of the court, the machinery of a receiver, as provided in R. L. c. 144, is unnecessary.

[4, 5] These cases have decided that 14 years of absence and inattention to property is a sufficient time to warrant a finding of abandonment. That the property made the subject of this statute is not a physical derelict, but in the hands of a trustee is of no [8] The act in section 10 is made applicable consequence. Such property may be none expressly to existing trustees. This is not the less abandoned by the beneficial owner. invalid. The period of absence required beIt can stand on no better footing in this re- fore there can be abandonment is 14 years. gard than deposits in savings banks, which The principle is that property withdrawn were under discussion in Atty. Gen. v. Provi- from the ordinary channels of use by an dent Inst. for Sav., 201 Mass. 23, 86 N. E. owner who cannot be found, should be dis912. In this regard, statutes like the one tributed as an intestate estate. This prinhere in question are statutes of limitations, ciple having been determined by the Legisla and do not offend against constitutional ture to be salutary, there is no countervailing guarantees. The limitation against the heirs reason why it should not apply to property at law, as new trustees, is 6 years so that already abandoned or in process of abandonthe absentee is not finally barred of the ment as well as to that which may be aban. right to claim his property until the expira-doned in the future. This retroactive feature tion of 20 years. See Mulvey v. Boston, 197 Mass. 178, 83 N. E. 402, 14 Ann. Cas. 349. It cannot be urged successfully in the light of these adjudications that the present statute is an attempt to extinguish arbitrarily the property rights of the absentee. The requirement as to notice in section 3 of the act is ample in view of similar provisions under consideration in the cases cited.

[6] The security provided for the integrity of the fund is a bond with or without sureties, as the court may require, from each of the heirs at law as new trustee, with liability on the part of the new trustee only for gross negligence in the management of the fund. Although this is a lower degree of skill than is ordinarily exacted, of trustees, there is no constitutional inhibition against its establishment by the Legislature in a class of cases like the present. There is an unqualified responsibility on the part of the trustee for the period of 6 years secured by the bond. The degree of security for the fund after the period of abandonment has expired is for the determination of the Legislature, within reasonable limits, which cannot be said to be transgressed in the present instance.

While the present act in some respects is unlike those under consideration in previous cases, there appear to be immaterial differences. The absentee is not barred of his action against the new trustees until the expiration of 6 years from their appointment, a far longer time than is commonly provided. The appointment of those who would be the heirs at law of the absentee as trustees and the division of the property among them, as in distributive shares, is not deprivation of property without due process of law, nor a failure to protect property in accordance with standing laws.

involves no unconstitutional exercise of legislative power. Wilson v. Iseminger, 185 U. S. 55, 22 Sup. Ct. 573, 46 L. Ed. 804; Soper V. Lawrence Bros. Co., 201 U. S. 359-368, 20 Sup. Ct. 473, 50 L. Ed. 788; Blinn v. Nelson, 222 U. S. 1, 32 Sup. Ct. 1, 56 L. Ed.

[9] The distinction between ex post facto and retroactive laws is thoroughly established. The latter are not forbidden by either the state or federal Constitutions. While statutes ordinarily are given only a prospec tive operation, yet where by express terms they are made to apply to existing conditions, that of itself does not render them void if not open to objection in other respects. Wallace v. Adams, 204 U. S. 415-422, 27 Sup. Ct. 363;† League v. Texas, 184 U. S. 156-161, 22 Sup. Ct. 475, 46 L. Ed. 478; Kentucky Union Co. v. Kentucky, 219 U. S. 140-152, 31 Sup. Ct. 171, 55 L. Ed. 737; In re Northampton, 158 Mass. 299, 33 N. E. 568; Danforth v. Groton Water Co., 178 Mass. 472, 59 N. E. 1033, 86 Am. St. Rep. 495; Rogers v. Nichols, 186 Mass. 440, 71 N. E. 950; Converse v. Ayer, 197 Mass. 443-454, 84 N. E. 98.

Decree of probate court affirmed.

(211 Mass. 146)

ROSENBUSH et al. v. BERNHEIMER et al (Supreme Judicial Court of Massachusetts. Suffolk. March 1, 1912.)

1. GARNISHMENT (§ 160*)-TRUSTEE PROCESS -TITLE OF PRINCIPAL DEFENDANT-NOTICE TO TRUSTEE.

That the principal defendants were the consignees named in the bill of lading issued title to the goods was in them, so as to charge by the trustee carrier was some evidence that the carrier with knowledge of their ownership.

[Ed. Note.-For other cases, see Garnishment, Cent. Dig. § 298; Dec. Dig. § 160.*]

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

2. GARNISHMENT (§ 148*)-TRUSTEE PROCESS | 8. CONSTITUTIONAL LAW (§ 115*)-VALIDITY. -OWNERSHIP OF GOODS.

6. CONSTITUTIONAL LAW (§ 176*) — IMPAIR-tain shoes consigned to the principal defendMENT OF CONTRACT.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

v. Minturn, 17 How. 100-107, 15 L. Ed. 58. | 76 N. E. 664, Union Mutual Life Ins. Co. v. Moreover, the fact of ownership in trustee Holbrook, 4 Gray, 235, and Landa v. Holck, process is the one ultimately to be determined upon the answer of the trustee, or if not discoverd therein, by other evidence. R. L. c. 189, § 15; Phillips v. Meagher, 166 Mass. 152, 44 N. E. 136; Corsiglia v. Burnham, 189 Mass. 347, 75 N. E. 253. It is agreed that the principal defendants were in truth the owners of the goods.

[3] II. The trustee further contends that, as it does not know of its own knowledge the contents of the cases and had no authority to open them, it cannot be held as trustee under Bottom v. Clarke, 7 Cush. 487. But that case is plainly distinguishable. It is enough for this purpose that the carrier was informed as to the contents of the boxes, and that they were goods of value.

[4] III. The Transportation Company has argued ingeniously that it ought not to be charged as trustee, on the ground it had a right to transport the goods for the purpose of earning freight, and to deprive it of this right would be to put it in a worse position pecuniarily by means of the trustee process than it would be toward the principal defendant, citing among other cases Staniels v. Raymond, 4 Cush. 324, and Van Camp Hardware & Iron Co. v. Plimpton, 174 Mass. 208-210, 54 N. E. 538, 75 Am. St. Rep. 296. The right of the carrier by water to earn freight has been said to accrue when "the goods are shipped and the voyage has commenced." McGaw v. Ocean Insurance Co., 23 Pick. 405. Here the voyage had not commenced. In passing it may be observed that this contention was raised in Davis v. Cleveland, C., C. & St. Louis Ry. Co., 217 U. S. 157, 164, 30 Sup. Ct. 463, 54 L. Ed. 708, 27 L. R. A. (N. S.) 823, 18 Ann. Cas. 907, but was given scant consideration by the court.

129 Mo. 663, 31 S. W. 900, 50 Am. St. Rep. 459. See, also, Cox v. Central Vermont Ry. Co., 187 Mass. 596-609, 73 N. E. 885. It is plain from St. 1905, c. 324, which expressly exonerates the common carrier, in the absence of fraud or collusion, from liability for failure to transport and deliver goods held in its hands by attachment under trustee process, that these decisions thus interpreting the trustee process statutes have been accepted and adopted as a legislative policy. See, also, St. 1910, c. 214. The case at bar is plainly distinguishable from Van Camp Hardware & Iron Co. v. Plimpton, 174 Mass. 208, 54 N. E. 538, 75 Am. St. Rep. 296, in that the goods had not been loaded on ship, and were not in transit, but were lying on the wharf, and it does not appear that it would cause the Transportation Company any expense to segregate them. It is not necessary to analyze the numerous cases cited by the Transportation Company, like Stevenot v. Eastern Ry. of Minnesota, 61 Minn. 104, 63 N. W. 256, 28 L. R. A. 600, Baldwin v. Great Northern Ry., 81 Minn. 247, 83 N. W. 986, 51 L. R. A. 640, 83 Am. St. Rep. 370, and Bates v. Chicago, Milwaukee & St. Paul Ry., 60 Wis. 296, 19 N. W. 72, 50 Am. Rep. 365, where under different circumstances carriers have been held not liable to garnishment.

V. The goods were "consigned to Bernheimer Bros., Baltimore." Hence the through bills of lading issued by the Transportation Company were nonnegotiable, and the goods were apparently subject to attachment by trustee process under the uniform bills of lading act. See St. 1910, c. 214, pt. 1, § 4, pt. 3, §§ 28, 33, and pt. 5, § 53.

But [6] VI. It has been argued in behalf of it is not necessary to discuss the soundness the Transportation Company that the statute of this proposition, for the reason that it is permitting attachment of goods by trustee not raised by the answer of the Transporta- process is obnoxious to the provision of the tion Company. Its answer discloses posses- federal Constitution forbidding any state to sion of property belonging to the principal pass any law which impairs the obligation defendants, and the only cause set out for of a contract. There is nothing in this connot being charged as trustee is that the prop- tention. As was said by Mr. Justice Swayne, erty was a subject of interstate commerce, in Edwards v. Kearzey, 96 U. S. 595, 603, 24 and hence not attachable in this process. L. Ed. 793, respecting the impairment of conThe answer makes no assertion of right to tract clause: "The inhibition of the Constipossession for the purpose of earning freight. | tution is wholly prospective. The states may Where the answer of the trustee discloses legislate as to contracts thereafter made as property, he should be charged, unless facts they may see fit. It is only those in existence appear which require him to be discharged. | when the hostile law is passed that are proIt cannot be assumed in his favor without statement in his answer or facts agreed or proved outside the answer that his pecuniary interests will be adversely affected.

[5] IV. These being the facts, the case is governed by Adams v. Scott, 104 Mass. 164, where a common carrier was charged as trustee on his answer that he had in his possession a valuable package for transportation belonging to the defendant. To the same ef

tected from its effect." King v. Dedham Bank, 15 Mass. 447, 8 Am. Dec. 112; Oshkosh Water Works Co. v. Oshkosh, 187 U. S. 437-439, 23 Sup. Ct. 234, 47 L. Ed. 249; Kuhn v. Fairmount Coal Co., 215 U. S. 349368, 30 Sup. Ct. 140, 54 L. Ed. 228. Our statute providing for attachment by trustee process was in existence long prior to the events here in controversy.

[7] VII. The same considerations dispose

that the statute as thus interpreted operates | the hands of others than the debtor have to deprive it of its property right secured by been enacted in most, if not all, the states the contract without due process of law. The of the Union. Statutes providing some exstatute was in existence at the time the con- tent of attachment by trustee process have tract of the Transportation Company was existed in this commonwealth for more than entered into. If it is otherwise a constitu- two hundred years, although a full measure tional exercise of legislative power, it is not of relief was not given until St. 1794, c. 65. rendered invalid by the circumstance that it See St. 1708-09, c. 7. It was exemplified in a affects in some degree the common-law free- custom of the merchants of London as early dom of action of persons. [8] All contracts are as 1481. See Drake on Attachment, §§ 1 to made subject to existing laws, even though 8. This method of obtaining a lien for the such laws might not be operative if intend-payment of a debt contemporaneously with ed to be retroactive. This statute comes the commencement of an action for its colplainly within the requirements of the four-lection must have been familiar in some of teenth amendment to the federal Constitu- its phases to most of the members of the contion as to due process of law as defined in many decisions of the Supreme Court of the United States. In Leeper v. Texas, 139 U. S. 462, 467, 468, 11 Sup. Ct. 577, 579 (35 L. Ed. 225), Chief Justice Fuller said: "It must be regarded as settled ** that law in its regular course of administration through courts of justice is due process, and when secured by the law of the state the constitutional requirement is satisfied; and that due process is so secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government unrestrained by the established principles of private right and distributive justice." See, also, Hagar v. Reclamation District, 111 U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569; Turpin v. Lemon, 187 U. S. 51, 58, 23 Sup. Ct. 20, 47 L. Ed. 70.

vention which framed the federal Constitution. The constitutionality of such statutes in their operation within the states upon property not in interstate commerce has never been questioned, and cannot be doubted. They are wholly general in scope, and apply equally to all kinds of property within the jurisdiction so made liable to attachment. They do not relate particularly or primarily to interstate commerce. If the application of the law occasionally affects articles of interstate commerce, this is a mere incident of a statute operating widely as to aspects of business intercourse which have always been within the jurisdiction of the several states. It cannot be presumed that the fathers in conferring upon Congress power "to regulate commerce with foreign nations and among the several states" intended to withdraw from a legal process so universal in its use and generally beneficent in its operation as

cess, all property, which might be in interstate commerce. It seems plain on principle that attachment laws of the character here in question are not obnoxious to any provision of the federal Constitution or laws. This is the effect of Adams v. Scott, 104 Mass. 164, in which the article held subject to trustee process was in transit in interstate commerce, although this point was not there discussed.

[9] VIII. The final ground urged against charging the trustee is that such action would constitute an interference with inter-attachment, either direct or by trustee prostate commerce. It is necessary to determine precisely the nature of trustee process. It is simply one means of attaching property. It has never been decided by any court, as far as we are aware, that property of a debtor was not subject to ordinary attachment at the instance of his creditors merely because it was in process of transportation from one state to another. Immunity from liability to attachment for this cause would afford an easy means for fraudulent debtors to secure exemption of property from payment of debts. The purpose of the statute providing for attachment by trustee process is a laudable one. Its primary design is to enable a creditor to obtain security for his claim. The stability of commercial obligations and the facility of business intercourse between individuals in different states and nations rest in no small measure upon faith in the continuance of established methods of collection of debts. The honor of merchants is supported by the efficiency of law. Payment of matured legal promises is a duty enforced alike by considerations of morality and civil law. Remedies to compel the performance of this duty have been provided by the common law for many centuries. Statuts giving greater or less right of attachment of goods, effects and credits in

The decisions of the Supreme Court of the United States support this view. The laws of the several states enforcing attachment and execution in cases cognizable in state courts have been sustained and upheld. Johnson v. Chicago & Pacific Elevator Co., 119 U. S. 388–398, 7 Sup. Ct. 254, 30 L. Ed. 447; The Winnebago, 205 U. S. 354, 362, 27 Sup. Ct. 509, 51 L. Ed. 836. While the enforcement of our trustee attachment statute may now and then temporarily interfere with interstate commerce, such interruption "is incidental only, is almost inseparable from the compulsory enforcement of liabilities of the class in question, is not in conflict with any regulation of Congress and does not in itself offend against the commerce clause of the Constitution." Martin v. West, 222 U. S. 191, 198, 32 Sup. Ct. 42, 44 (56 L. Ed. —).

The Transportation Company relies on this