utor, administrator or collector from retaining a reasonable sum for necessary charges and disbursements in the management of the estate. And any judge of the superior court or any commissioner appointed by said court to take and state an account of the assets of any deceased person in the hands of an executor, administrator or collector, upon any plea of fully administered, shall have power and be authorized and directed to allow such executor, administrator or collector not exceeding five per cent. upon the amount of receipts and expenditures which shall appear upon the trial of said cause or taking of such account to have been fairly made in the course of administration.

Code, s. 1524; 1868-9, c. 113, s. 95; 1869-70, c. 189.

150. Petition may be filed for. An executor, administrator or collector, who has filed his final account for settlement, may, at any time thereafter, file his petition against the parties interested in the due administration of the estate, in the superior court of the county in which he qualified, or before the judge in term time, setting forth the facts, and praying for an account and settlement of the estate committed to his charge. The petition shall be proceeded on in the manner prescribed by law, and, at the final hearing thereof, the judge or clerk may make such order or decree in the premises as shall seem to be just and right.

Code, s. 1525; 1868-9, c. 113, s. 96.

151. Fund due absent party or infant without guardian paid to court; party not heard of in seven years, procedure. When any balance of money or other estate which is due an absent defendant or infant without guardian is found in the hands of an executor, administrator or collector who has preferred his petition for settlement, the court or judge may direct such money or other estate to be paid into court, to be invested upon interest, or otherwise managed under the direction of the judge, for the use of such absent person or infant. When the party entitled to the money has not been heard of for seven years or more the fund shall be distributed among the next of kin of the absent deceased person as prescribed by statute, in the following manner: An administrator shall be appointed and made a party to a special proceeding in which a verified petition shall be filed setting forth the facts, with names of the parties entitled, and such other evidence as may be required by the clerk in whose office said fund was deposited, and the proceedings conducted as other special proceedings; and the order disposing of the fund shall be approved and confirmed by the judge, either in term or at chambers.

Code, s. 1526; 1893, c. 317; 1868-9, c. 113, s. 97.

152. Liability and compensation of clerk. Every clerk of the superior court who may be intrusted with money or other estate in such case shall be liable on his official bond for the faithful discharge of the duties enjoined upon him by the judge in relation to said estate, and he may receive such compensation for his serv ices as the judge may allow.

Code, s. 1527; 1868-9, c. 113, s. 98.

153. When paid to university. All sums of money, or other estate of whatever kind, which shall remain in the hands of any executor, administrator or collector for five years after his qualification, unrecovered or unreclaimed by suit, by creditors, next of kin, or others entitled thereto, shall be paid by the executor, administrator or collector to the trustees of the university of North Carolina; and the said trustees are authorized to demand, sue for, recover and collect such moneys or other estate of whatever kind, and hold the same without liability for profit or interest, until a just claim therefor shall be preferred by creditors, next of kin, or others entitled thereto; and if no such claim shall be preferred within ten years after such money or other estate be received by the said trustees, then the same shall be held by them absolutely.

Code, s. 1504; 1868-9, c. 113, s. 76.

154. Who parties to proceeding for settlement. In all actions and proceedings by administrators or executors for a final settlement of their estates and trusts, whether at the instance of distributees, legatees or creditors or of themselves, if the personal representative die or be removed pending such actions or proceedings, the administrator de bonis non or administrator with the will annexed, as the case may be, shall be made party as provided in other cases, or in such way as the court may order, and the action or proceeding shall be conducted to its end, and such judgment shall be rendered on the confirmation of the report, or upon the terms of settlement, if any shall be agreed upon by the parties, as will fully protect and discharge all parties to the record.

1893, c. 206.

155. Legacies ordered paid within two years, when. It shall be in the power of the judge or court, on petition or action, within two years from the qualification of an executor, administrator or collector, to adjudge the payment in full or partially, of legacies and distributive shares, on such terms as the court shall deem proper, when there shall be no necessity for retaining the fund. Code, s. 1512.

XXI. ACTIONS BY AND AGAINST REPRESENTATIVE.

156. Right of action survives to, and against. Upon the death of any person, all demands whatsoever, and rights to prosecute or defend any action or special proceeding, existing in favor of or against such person, except as hereinafter provided, shall survive to and against the executor, administrator or collector of his estate. Code, s. 1490; 1868-9, c. 113, s. 63.

Note. For action for wrongful death, see ss. 59, 60.

157. Actions which do not survive. The following rights of action do not survive:

1. Causes of action for libel and for slander, except slander of title.

2. Causes of action for false imprisonment, assault and battery, or other injuries to the person, where such injury does not cause the death of the injured party.

3. Causes where the relief sought could not be enjoyed, or granting it would be nugatory, after death.

Code, s. 1491; 1868-9, c. 113, s. 64.

158. Right of action survives to successor. Executors and administrators shall have actions in like manner as the first testator or intestate might have had against any person, his executors and administrators, in all cases, except where such actions, being commenced, are not allowed by statute to be revived on the death of any party.

Code, s. 1497; 1868-9, c. 113, s. 69; 1905, c. 286.

159. May maintain any appropriate action to recover assets. Executors, administrators or collectors may maintain any appropriate action or proceeding to recover assets, and to recover possession of the real property of which executors are authorized to take possession by will; and to recover for any injury done to such assets or real property at any time subsequent to the death of the decedent.

Code, s. 1501; 1868-9, c. 113, s. 73.

160. Must be in representative capacity. All actions and proceedings brought by or against executors, administrators or collectors, upon any cause of action or right to which the estate is the real party in interest, must be brought by or against them in their representative capacity.

Code, s. 1507; 1868-9, c. 113, s. 79.

161. Appearance by, or service on, one binds all. In actions against several executors, administrators or collectors they are all

to be considered as one person, representing the decedent; and if the summons is served on one or more, but not all, the plaintiff may proceed against those served, and if he recovers, judgment may be entered against all.

Code, s. 1508; 1868-9, c. 113, s. 81.

162. Action against, when; execution issues, how. An action may be brought by a creditor against an executor, administrator or collector on a demand at any time after it is due, but no execution shall issue against the executor, administrator or collector on a judgment therein against him without leave of the court, upon notice of twenty days and upon proof that the defendant has refused to pay such judgment its ratable part, and such judgment shall be a lien on the property of the defendant only from the time of such leave granted.

Code, s. 1509; 1868-9, c. 113, s. 82.

163. Service by publication, when. Whenever process may issue against an executor who has not given bond, and the same can not be served upon him by reason of his absence or concealment, service of such process may be made by publication in the manner prescribed in other civil actions.

Code, s. 1523; 1868-9, c. 113, s. 94.

164. Successor may issue execution, when. Any executor, administrator or collector may have execution issued on any judgment recovered by any person who preceded him in the administration of the estate, or by the decedent, in the same cases and the same manner as the original plaintiff might have done.

Code, s. 1513; 1868-9, c. 113, s. 84.

165. Letters revoked, action continues. In case the letters of an executor, administrator or collector are revoked, pending an action to which he is a party, the adverse party may, notwithstanding, continue the action against him in order to charge him personally. If such party does not elect so to do, within six months. after notice of such revocation, the action may be continued against the successor of the executor, administrator or collector in the administration of the estate, in the same manner as in case of death. Code, s. 1514; 1868-9, c. 113, s. 85.

XXII. MISCELLANEOUS PROVISIONS.

166. How personal representatives hold. Every estate vested in executors, administrators or collectors, as such, shall be held by them in joint tenancy.

Code, s. 1502; 1868-9, c. 113, s. 74.

167. Personal representative liable. The executors and administrators of persons, who, as rightful executors or as executors in their own wrong, or as administrators, shall waste or convert to their own use any estate or assets of any person deceased, shall be chargeable in the same manner as their testator or intestate might have been.

Code, s. 1495; 1868-9, c. 113, s. 68.

168. Bona fide administration under act of 1868-9 validated. If any person shall have bona fide administered any estate or any part of the estate of any deceased person whereof original administration was granted prior to the first day of July, under the said act of one thousand eight hundred and sixty-eight and one thousand eight hundred and sixty-nine, he shall not be deemed guilty of a devastavit.

Code, s. 1434; 1869-70, c. 58, s. 2.

169. Time in which act to be done may be extended. If no length of notice, or no time for the doing of an act, is stated in this chapter, the time shall be reasonable, and in any case it may be enlarged by the clerk from time to time, or by the judge of the superior court, on application to him or on appeal to him from the clerk.

Code, s. 1463; 1871-2, c. 213, s. 16.

170. Powers under will not affected; proviso. Nothing in this chapter shall be construed to affect the discretionary powers, trusts and authorities of an executor or other trustee acting under a will: Provided, creditors be not delayed thereby, nor the order changed in which by law they are entitled to be paid.

Code, s. 1415; 1868-9, c. 113, s. 23; R. C., c. 46, ss. 12, 13.

171. Causes transferred to superior court, when. All cases for the sale of real estate for assets heretofore in the county courts, in which final orders for collection and application or distribution of purchase money and making titles were not made before the adoption of the present constitution, may, at the instance of any person interested, be transferred, as other cases, to the superior court of the county where such proceeding was pending, and such court shall have full authority to make all necessary orders to complete the same.

Code, s. 1542; 1871-2, c. 161.

172. Estates prior to certain dates. This chapter shall apply to the estates of such deceased persons only whereof original administration has been granted subsequent to the first day of July, one