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 a 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.
There was a demurrer to this petition, for that the wife of the deceased was entitled to 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 of the intestate, whereby the church wardens became entitled under the act of 1715, ch. 48, sec. 9.
PER CURIAM.
After hearing the argument, as to the first point. When a person concerned in interest is stated in the bill to be removed to a foreign country, or to be moved away and not since heard of after many years, so that he cannot be served with process, that shall be a good reason as between third persons for not making him a party, and the court will proceed to a hearing 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, ch. 23, by which all the estate of the deceased not claimed is to be deposited in the treasury, subject to the claim of creditors and the lawful representative of such decedent. However, 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.
Cited: Spivey v. Jenkins, 36 N.C. 129.