Ingram v. Lanier, 2 N.C. 253, 1 Hayw. 253 (1795)

April 1795 · North Carolina Superior Court

2 N.C. 253, 1 Hayw. 253

Ingram v. Lanier.

Where a person concerned in interest is stated in the bill to be moved away and not since heard of for many years, so that he cannot be served with process, that shall be ; good reason as between third persons for not making him a party ; and the court will proceed to a hearing notwithstanding. When the court feels any doubt about deciding upon a plea, it can overrule it, and suffer the Defendant to insist upon the same in his answer.

This was a petition antler the act of 1762, c. 5, s. 23, stating that the petitioner is the brother of Peter Lewis, deceased, who died possessed of an estate, leaving a wife, who had moved away and had not been since heard of, so as to be served with process : that he was the only-next of kin of the deceased ; that Lanier had procured letters of administration upon the personal estate of the deceased, and had possessed himself thereof, and would not account for the same, and deliver it or his share thereof to the petitioner.

There was a demurrer to this pelifion, for that the wife of the deceased was entitled ¡o a moiety of the personal estate, and was not made a party : there was also a plea that seven years had elapsed since the death ofthe intestate, whereby the church wardens became entitled under the act of 1715. c. 48, s. 9.

Per curiam,

after hearing the argument, as to the first point, when a person concerned in interest, is stated in the hill to be removed to a foreign country, or to be moved away and not since, heard of after many years, so that he cannot he served with process, that .shall he a good reason as between third persons for not making him a party, and the court will proceed to a ¡searing notwithstanding. Here, that is stated in the petition as a reason for not making her a party. 2 Atk. 510.

As to the other matter, the old law is altered by the act of 1784, c. 23, by which ail the estate of the deceased, not claimed, is to he deposited in the treasury, subject to the claim of creditors, and the law ful representative of such decedent. However as seven years may have expired before the passing of this latter act, in which case it may be doubted whether the first or latter law is to govern this case — let the demurrer and plea be overruled, and the Defendant be at liberty to insist upon the limitation of time-in his answer.