MULLANE, SPECIAL GUARDIAN, v. CENTRAL HANOVER BANK & TRUST CO., TRUSTEE, ET AL. APPEAL FROM THE COURT OF APPEALS OF NEW YORK. No. 378. Argued February 8, 1950.-Decided April 24, 1950. A trust company in New York which had exclusive management and control of a common trust fund established by it under § 100-c of the New York Banking Law petitioned under that section for a judicial settlement of accounts which would be binding and conclusive as to any matter set forth therein upon everyone having any interest in the common fund or in any participating trust. In this common fund the trust company had invested assets of numerous small trusts of which it was trustee and of which some of the beneficiaries were residents and some nonresidents of the State. The only notice of this petition given beneficiaries was by publication in a local newspaper pursuant to § 100-c (12). Held: 1. Whether such a proceeding for settlement of accounts be technically in personam, in rem, or quasi in rem, the interest of each state in providing means to close trusts that exist by the grace of its laws and are administered under the supervision of its courts is such as to establish beyond doubt the right of its courts to determine the interests of all claimants, resident or nonresident, provided its procedure accords full opportunity to appear and be heard. Pp. 311-313. 2. The statutory notice by publication is sufficient as to any beneficiaries whose interests or addresses are unknown to the trustee, since there are no other means of giving them notice which are both practicable and more effective. Pp. 313-318. 3. Such notice by publication is not sufficient under the Fourteenth Amendment as a basis for adjudication depriving of substantial property rights known persons whose whereabouts are also known, since it is not impracticable to make serious efforts to notify them at least by ordinary mail to their addresses on record with the trust company. Pp. 318-320. 299 N. Y. 697, 87 N. E. 2d 73, reversed. Overruling objections to the statutory notice to beneficiaries by publication authorized by § 100-c of the New York Banking Law, a New York Surrogate's Court entered a final decree accepting an accounting of the trustee of 306 Opinion of the Court. a common trust fund established pursuant to that section. 75 N. Y. S. 2d 397. This decree was affirmed by the Appellate Division of the Supreme Court of New York (see 274 App. Div. 772, 80 N. Y. S. 2d 127) and the Court of Appeals of New York (299 N. Y. 697, 87 N. E. 2d 73). On appeal to this Court, reversed, p. 320. Kenneth J. Mullane argued the cause and filed a brief for appellant. Albert B. Maginnes argued the cause for the Central Hanover Bank & Trust Co., appellee. With him on the brief was J. Quincy Hunsicker, 3rd. James N. Vaughan submitted on brief for Vaughan, appellee. Peter Keber and C. Alexander Capron filed a brief for the New York State Bankers Association, as amicus curiae, urging affirmance. MR. JUSTICE JACKSON delivered the opinion of the Court. This controversy questions the constitutional sufficiency of notice to beneficiaries on judicial settlement of accounts by the trustee of a common trust fund established under the New York Banking Law. The New York Court of Appeals considered and overruled objections that the statutory notice contravenes requirements of the Fourteenth Amendment and that by allowance of the account beneficiaries were deprived of property without due process of law. 299 N. Y. 697, 87 N. E. 2d 73. The case is here on appeal under 28 U. S. C. § 1257. Common trust fund legislation is addressed to a problem appropriate for state action. Mounting overheads have made administration of small trusts undesirable to corporate trustees. In order that donors and testators of moderately sized trusts may not be denied the service of corporate fiduciaries, the District of Columbia and some Opinion of the Court. 339 U.S. thirty states other than New York have permitted pooling small trust estates into one fund for investment administration.* The income, capital gains, losses and expenses of the collective trust are shared by the constituent trusts in proportion to their contribution. By this plan, diversification of risk and economy of management can be extended to those whose capital standing alone would not obtain such advantage. Statutory authorization for the establishment of such common trust funds is provided in the New York Banking Law, 100-c (c. 687, L. 1937, as amended by c. 602, L. 1943 and c. 158, L. 1944). Under this Act a trust company may, with approval of the State Banking Board, establish a common fund and, within prescribed limits, *Ala. Code Ann., 1940, Cum. Supp. 1947, tit. 58, §§ 88 to 103, as amended, Laws 1949, Act 262; Ariz. Code Ann., 1939, Cum. Supp. 1949, §§ 51-1101 to 51-1104; Ark. Stat. Ann. 1947, §§ 58-110 to 58112; Cal. Bank. Code Ann., Deering, 1949, § 1564; Colo. Stat. Ann., 1935, Cum. Supp. 1947, c. 18, §§ 173 to 178; Conn. Gen. Stat. 1949 Rev., § 5805; Del. Rev. Code, 1935, § 4401, as amended, Laws, 1943, c. 171, Laws 1947, c. 268; (D. C.) 63 Stat. 938; Fla. Stat., 1941, §§ 655.29 to 655.34; Ga. Code Ann., 1937, Cum. Supp. 1947, §§ 109601 to 109-622; Idaho Code Ann., 1949, Cum. Supp. 1949, §§ 68-701 to 68-703; Ill. Rev. Stat., 1949, c. 162, §§ 57 to 63; Ind. Stat. Ann., Burns, 1950, §§ 18-2009 to 18-2014; Ky. Rev. Stat., 1948, § 287.230; La. Gen. Stat. Ann., 1939, § 9850.64; Md. Ann. Code Gen. Laws, 1939, Cum. Supp. 1947, art. 11, § 62A; Mass. Ann. Laws, 1933, Cum. Supp. 1949, c. 203A; Mich. Stat. Ann., 1943, §§ 23.1141 to 23.1153; Minn. Stat., 1945, § 48.84, as amended, Laws 1947, c. 234; N. J. Stat. Ann., 1939, Cum. Supp. 1949, §§ 17:9A-36 to 17:9A-46; N. C. Gen. Stat., 1943, §§ 36-47 to 36-52; Ohio Gen. Code Ann. (Page, 1946) §§ 715 to 720, 722; Okla. Stat., 1941, Cum. Supp. 1949, tit. 60, § 162; Pa. Stat. Ann., 1939, Cum. Supp. 1949, tit. 7, §§ 819-1109 to 819-1109d; So. Dak. Laws 1941, c. 20; Tex. Rev. Civ. Stat. Ann., 1939, Cum. Supp. 1949, art. 7425b-48; Vt. Stat., 1947 Rev., § 8873; Va. Code Ann., 1950, §§ 6-569 to 6–576; Wash. Rev. Stat. Ann., Supp. 1943, §§ 3388 to 3388-6; W. Va. Code Ann., 1949, § 4219(1) et seq.; Wis. Stat., 1947, § 223.055. 306 Opinion of the Court. invest therein the assets of an unlimited number of estates, trusts or other funds of which it is trustee. Each participating trust shares ratably in the common fund, but exclusive management and control is in the trust company as trustee, and neither a fiduciary nor any beneficiary of a participating trust is deemed to have ownership in any particular asset or investment of this common fund. The trust company must keep fund assets separate from its own, and in its fiduciary capacity may not deal with itself or any affiliate. Provisions are made for accountings twelve to fifteen months after the establishment of a fund and triennially thereafter. The decree in each such judicial settlement of accounts is made binding and conclusive as to any matter set forth in the account upon everyone having any interest in the common fund or in any participating estate, trust or fund. In January, 1946, Central Hanover Bank and Trust Company established a common trust fund in accordance with these provisions, and in March, 1947, it petitioned the Surrogate's Court for settlement of its first account as common trustee. During the accounting period a total of 113 trusts, approximately half inter vivos and half testamentary, participated in the common trust fund, the gross capital of which was nearly three million dollars. The record does not show the number or residence of the beneficiaries, but they were many and it is clear that some of them were not residents of the State of New York. The only notice given beneficiaries of this specific application was by publication in a local newspaper in strict compliance with the minimum requirements of N. Y. Banking Law § 100-c (12): "After filing such petition. [for judicial settlement of its account] the petitioner shall cause to be issued by the court in which the petition is filed and shall publish not less than once in each week Opinion of the Court. 339 U.S. for four successive weeks in a newspaper to be designated by the court a notice or citation addressed generally without naming them to all parties interested in such common trust fund and in such estates, trusts or funds mentioned in the petition, all of which may be described in the notice or citation only in the manner set forth in said petition and without setting forth the residence of any such decedent or donor of any such estate, trust or fund." Thus the only notice required, and the only one given, was by newspaper publication setting forth merely the name and address of the trust company, the name and the date of establishment of the common trust fund, and a list of all participating estates, trusts or funds. At the time the first investment in the common fund was made on behalf of each participating estate, however, the trust company, pursuant to the requirements of § 100-c (9), had notified by mail each person of full age and sound mind whose name and address were then known to it and who was "entitled to share in the income therefrom. . . [or] . . . who would be entitled to share in the principal if the event upon which such estate, trust or fund will become distributable should have occurred at the time of sending such notice." Included in the notice was a copy of those provisions of the Act relating to the sending of the notice itself and to the judicial settlement of common trust fund accounts. Upon the filing of the petition for the settlement of accounts, appellant was, by order of the court pursuant to § 100-c (12), appointed special guardian and attorney for all persons known or unknown not otherwise appearing who had or might thereafter have any interest in the income of the common trust fund; and appellee Vaughan was appointed to represent those similarly interested in the principal. There were no other appearances on behalf of any one interested in either interest or principal. |