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HIPOLITO, Kathleen Kirby P

Remedial Law Review
August 15, 2014

ACTIONS THAT SURVIVE THE DEATH OF A PARTY

There are actions which survive the death of a party during pendency, and there are those that warrant
dismissal upon death. The first question that must be asked is whether the action is civil or criminal.

1. CRIMINAL ACTIONS
Since the plaintiff is the State, which is not capable of death, the death of the accused or defendant will
be discussed.

1.1 Death Before Arraignment
Rules of Court, Rule 111, Section 4, Paragraph 4. Effect of death on civil actions. If the
accused dies before arraignment, the case shall be dismissed without prejudice to any civil
action the offended party may file against the estate of the deceased.
If the accused dies before arraignment, the criminal case shall be dismissed. But such dismissal shall be
without prejudice to any civil action the offended party may file against the estate of the deceased.
1.2 Death Before Final Judgment
Revised Penal Code. Art. 89. How criminal liability is totally extinguished. Criminal liability
is totally extinguished:
1. By death of the convict, as to the personal penalties; and as to pecuniary penalties, liability
therefor is extinguished only when the death of the offender occurs before final judgment
As to an accuseds criminal liability (personal penalties), his death pending appeal, extinguishes it. A
criminal action also has a civil aspect based thereon, which may be prosecuted on the same criminal
action, reserved to be instituted in a separate civil action, or waived. The civil liability (pecuniary
penalties) directly arising from and based solely on the offense committed (civil liability ex delicto), is
also extinguished by the death of the accused pending appeal of his conviction.
The rationale, therefore, is that the criminal action is extinguished inasmuch as there is no longer a
defendant to stand as the accused, the civil action instituted therein for recovery of civil liability ex
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delicto is ipso facto extinguished, grounded as it is on the criminal case (People v Bayot, GR 200030,
April 18, 2012).
Corollarily, the claim for civil liability survives notwithstanding the death of [the] accused, if the same
may also be predicated on a source of obligation other than delict. Article 1157 of the Civil Code
enumerates these other sources of obligation from which the civil liability may arise as a result of the
same act or omission: law, contract, quasi-contract, quasi-delict (Ibid).
Where the civil liability survives, as explained in the preceding, an action for recovery therefor may be
pursued but only by way of filing a separate civil action and subject to Section 1, Rule 111 of the 1985
Rules on Criminal Procedure as amended. This separate civil action may be enforced either against the
executor/administrator or the estate of the accused, depending on the source of obligation upon which
the same is based as explained above (Ibid).
Finally, the private offended party need not fear a forfeiture of his right to file this separate civil action
by prescription, in cases where during the prosecution of the criminal action and prior to its extinction,
the private-offended party instituted together therewith the civil action. In such case, the statute of
limitations on the civil liability is deemed interrupted during the pendency of the criminal case,
conformably with [the] provisions of Article 1155 of the Civil Code, that should thereby avoid any
apprehension on a possible privation of right by prescription (Ibid)

1.3 Death After Final Judgment
Personal liabilities are also extinguished but the pecuniary liabilities of the accused are not extinguished.
Claims shall be filed against the estate of the accused under Rule 86, Rules of Court (Bedan Red Book
2014, Remedial Law).

2. CIVIL ACTIONS
For actions that survive the death of a party, Rule 3, Section 16 provides for the duty of the counsel of
the deceased party to inform the court and who may substitute the deceased party.
Rule 3, Section 16. Death of party; duty of counsel. Whenever a party to a pending action
dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the
court within thirty (30) days after such death of the fact thereof, and to give the name and
address of his legal representative or representatives. Failure of counsel to comply with his duty
shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the deceased, without requiring
the appointment of an executor or administrator and the court may appoint a guardian ad
litem for the minor heirs.
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The court shall forthwith order said legal representative or representatives to appear and be
substituted within a period of thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased party, or if the one so
named shall fail to appear within the specified period, the court may order the opposing party,
within a specified time to procure the appointment of an executor or administrator for the
estate of the deceased and the latter shall immediately appear for and on behalf of the
deceased. The court charges in procuring such appointment, if defrayed by the opposing party,
may be recovered as costs.
We have to know which actions survive the death of a party and which actions dont because there are
different rules for each.
For civil actions, the test whether the action survives or not is:
In the causes of action which survive the wrong complained affects primarily and principally
property and property rights, the injuries to the person being merely incidental, while in the
causes of action which do not survive the injury complained of is to the person, the property
and rights of property affected being incidental. (Bonilla v Barcena, GR 41715, June 18, 1976).
If the action affects primarily property and property rights, the action survives the death of the party (i.e
contractual money claims, recovery of real property). If the action affects person, the action does not
survive (i.e purely personal actions of support, annulment of marriage, legal separation) and the proper
action of the court is simply dismiss the case. It follows then that substitution will not be required
(Riano, Civil Procedure Bar Lectures Series, Volume 1, 2011).

2.1 Rules When the Action Survives the Death of the Party
It depends if the action is a contractual money claim or not.

2.1.1 Contractual Money Claims
2.1.1.1 Plaintiff diesthe case will continue and the heirs or legal representatives will proceed. Apply
Rule 3, Section 16
2.1.1.2 Defendant dies
a. Before Entry of Final Judgmentthe case shall not be dismissed but shall be allowed to continue until
entry of final judgment.
Rules of Court, Rule 3, Section 20. Action on contractual money claims. When the action is
for recovery of money arising from contract, express or implied, and the defendant dies before
entry of final judgment in the court in which the action was pending at the time of such death, it
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shall not be dismissed but shall instead be allowed to continue until entry of final judgment. A
favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially
provided in these Rules for prosecuting claims against the estate of a deceased person.
b. After Entry of Judgment but Before Executionall claims against the decedent, whether due, not due
or contingent, must be filed within the time limited in the notice as a claim against the estate. The
plaintiff cannot move to execute under Rule 39.
Rules of Court, Rule 86, Section 5. Claims which must be filed under the notice. If not
filed, barred; exceptions. All claims for money against the decent, arising from contract,
express or implied, whether the same be due, not due, or contingent, all claims for funeral
expenses and expense for the last sickness of the decedent, and judgment for money against
the decent, must be filed within the time limited in the notice; otherwise they are barred
forever, except that they may be set forth as counterclaims in any action that the executor or
administrator may bring against the claimants. Where an executor or administrator commences
an action, or prosecutes an action already commenced by the deceased in his lifetime, the
debtor may set forth by answer the claims he has against the decedent, instead of presenting
them independently to the court as herein provided, and mutual claims may be set off against
each other in such action; and if final judgment is rendered in favor of the defendant, the
amount so determined shall be considered the true balance against the estate, as though the
claim had been presented directly before the court in the administration proceedings. Claims
not yet due, or contingent, may be approved at their present value
c. After Levy or Execution but Before Auction Salethe property actually levied may be sold for the
satisfaction of the judgment obligation.
Rules of Court, Rule 39, Section 7. Execution in case of death of party. In case of the death of
a party, execution may issue or be enforced in the following manner:
(c) In case of the death of the judgment obligor, after execution is actually levied upon any of
his property, the same may be sold for the satisfaction of the judgment obligation, and the
officer making the sale shall account to the corresponding executor or administrator for any
surplus in his hands.

2.1.2 Non-Contractual Money Claims
If it involves a non-contractual money claim or claims which are mentioned in Rule 86, Section 7 and
Rule 87, Section 1, there must be substitution. Rule 3, Section 16 must be applied
Rules of Court, Rule 86, Section 7. Mortgage debt due from estate. A creditor holding a claim
against the deceased secured by mortgage or other colateral security, may abandon the security
and prosecute his claim in the manner provided in this rule, and share in the general distribution
of the assets of the estate; or he may foreclose his mortgage or realize upon his security, by
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action in court, making the executor or administrator a party defendant, and if there is a
judgment for a deficiency, after the sale of the mortgaged premises, or the property pledged, in
the foreclosure or other proceeding to realize upon the security, he may claim his deficiency
judgment in the manner provided in the preceding section or he may rely upon his mortgage or
other security alone, and foreclosure the same at any time within the period of the statute of
limitations, and in that event he shall not be admitted as a creditor, and shall receive no share in
the distribution of the other assets of estate; but nothing herein contained shall prohibit the
executor or administrator from redeeming the property mortgaged or pledged, by paying the
debt for which it is held as security, under the direction of the court, if the court shall adjudge it
to be for the best interest of the estate that such redemption shall be made.
Rule 87, Section 1. Actions which may and which may not be brought against executor or
administrator. No action upon a claim for the recovery of money or debt or interest thereon
shall be commenced against the executor or administrator; but to recover real or personal
property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to
recover damages for an injury to person or property, real or personal, may be commenced
against him.

3. EXAMPLES OF ACTIONS THAT SURVIVE THE DEATH OF A PARTY
3.1 Actions for the recovery of money on contractual claims, express or implied are not extinguished by
the death of the defendant.
Rules of Court, Rule 3, Section 20. Action on contractual money claims. When the action is
for recovery of money arising from contract, express or implied, and the defendant dies before
entry of final judgment in the court in which the action was pending at the time of such death, it
shall not be dismissed but shall instead be allowed to continue until entry of final judgment. A
favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially
provided in these Rules for prosecuting claims against the estate of a deceased person.
3.2 Actions to recover real and personal property from the estate (Rules of Court, Rule 87, Section 1).
3.3 Actions to enforce a lien thereon (Rules of Court, Rule 87, Section 1).
3.4 Actions to recover damages for an injury to person or property (Rules of Court, Rule 87, Section 1).
3.4 Actions to recover damages arising from delicts (after final judgment).
3.5 Actions based on the tortious conduct of the defendant survive the death of the latter.
Where the suit revolves around alleged negligent acts of decedent for having entered into
contracts without the prior approval of the Board of Directors, to plaintiff's damage and
prejudice, and is against the decedent and other directors for having subsequently approved
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those contracts in bad faith and/or breach of trust, the case is not a mere action for money nor
a claim for money arising from contract, but is embraced in suits filed to recover damages for an
injury to person or property, real or personal, which survives (Board of Liquidators v Kalaw, GR
18805, August 14, 1967).
3.4 Action for quieting of title with damages.
Civil Case No. 2570 is an action for quieting of title with damages which is an action involving
real property. It is an action that survives pursuant to Section 1, Rule 87 as the claim is not
extinguished by the death of a party. And when a party dies in an action that survives, Section
17 of Rule 3 of the Revised Rules of Court provides for the procedure.
It is the duty of counsel for the deceased to inform the court of the death of his client. The
failure of counsel to comply with his duty under Section 16 to inform the court of the death of
his client and the non-substitution of such party will not invalidate the proceedings and the
judgment thereon if the action survives the death of such party. The decision rendered shall
bind the partys successor-in-interest (Saligumba v Palanog, GR 143365, December 4, 2008).
3.5 Action for Ejectment.
Considering the circumstances of the case, a preliminary issue surfaces as to the status of the
decision vis-a-vis the petitioners. The petitioners challenge the proceeding in the Court of
Appeals after the death of the plaintiff-appellant Adela Salindon. They are of the opinion that
since there was no legal representative substituted for Salindon after her death, the appellate
court lost its jurisdiction over the case and consequently, the proceedings in the said court are
null and void. This argument is without merit.
There is no dispute that an ejectment case survives the death of a party. The supervening
death of plaintiff-appellant Salindon did not extinguish her civil personality. In the case at bar,
Salindon's counsel after her death on December 11, 1976 failed to inform the court of Salindon's
death. The appellate court could not be expected to know or take judicial notice of the death of
Salindon without the proper manifestation from Salindon's counsel. In such a case and
considering that the supervening death of appellant did not extinguish her civil personality, the
appellate court was well within its jurisdiction to proceed as it did with the case. There is no
showing that the appellate court's proceedings in the case were tainted with irregularities
(Florendo v Coloma, GR 60544, May 19, 1984).