RULE 87

ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS

Section 1 Actions which may and which may not be brought against executor or administrator.

Actions that may be brought directly against the executor and administrator:

Recovery of real/personal property or any interest therein from the estate.

Enforcement of a lien thereon.

Action to recover damages arising from tort.

*1-3 are actions that survive the decedent.

Actions that may not be brought against executor or administrator:

Claims for the recovery of

money

debt

interest

Section 2 Executor or administrator may bring or defend actions which survive.

Actions may be brought by the executor or administrator

Recovery or protection of the property or rights of the deceased, action for causes which survive.

Section 3 Heirs may not sue until share assigned.

Heirs may not sue until share assigned

Before distribution is made or before any residue is known, the heirs and devisees have no cause of action against the executor or administrator for recovery of the property left by the decedent.

Section 4 Executor or administrator may compound with debtor.

Executor or administrator may compound with debtor

With the approval of the court, an executor or administrator may compound with the debtor of the deceased for a debt due, and may give a discharge of such debt on receiving a just dividend of the estate of the debtor.

Section 5 Mortgage due estate may be foreclosed.

There is no need of a special authority from the court for the administrator or executor to bring an action for foreclosure on behalf of the estate.

Section 6 Proceedings when property concealed, embezzled, or fraudulently conveyed.

General rule: (sec. 6) The probate court has no authority to decide whether or not the properties belong to the estate or to the person being examined since probate courts are courts of limited jurisdiction.

Exceptions:

Provisional determination of ownership for inclusion in the inventory;

Submission to the court’s jurisdiction.

Purpose: To elicit information or to secure evidence from those persons suspected as having possessed or having knowledge of properties belonging to deceased, or of having concealed, embezzled or conveyed away any properties of the deceased.

Section 7 Person entrusted with estate compelled to render account.

Section 8 Embezzlement before letters issued.

Embezzlement before letters issued

The responsible person shall be liable to an action in favor of the executor or administrator of the estate for double the value of the property sold.

Double Value Rule

If before grant of letter testamentary or of administration, a person embezzles or alienates money or property of the deceased-liable to an action in favour of executor/administrator for DOUBLE THE VALUE of the property sold, embezzled, or alienated.

Section 9 Property fraudulently conveyed by deceased may be recovered. When executor or administrator must bring action.

Requisites: (sec. 9) Application of the creditors;

1. Payment of cost and expenses; and

2. Give security therefore to the executor or administrator.

Section 10 When creditor may bring action. Lien for costs.

Requisites for creditor to file action:

1. There is a deficiency of assets in the hands of an executor or administrator for the payment of debts and expense of administration;

2. In his lifetime, the deceased had made or attempted to make a fraudulently conveyance of his property or had so conveyed such property that by law, the conveyance would be void as against his creditors;

3. The subject of the attempted conveyance would be liable to attachment in his lifetime;

4. The executor or administrator has shown no desire to file the action or failed to institute the same within a reasonable time;

5. Leave is granted by the court to the creditor to file the action;

6. A bond is filed by the creditor;

7. The action by the creditor is in the name of the executor or administrator.

CASEWARNER BARNES v. LUZON SURETY (95 Phil 924)

Facts:

-Plaintiff, Warner, Barnes & Co., filed a complaint in the CFI against defendant, Luzon Surety, for the recovery of P6000, plus costs and P1500 for attorney’s fees. The basis for the complaint was a bond in the sum of P6000 filed by Agueda Gonzaga as administratrix of the Interstate Estate of Aguedo Gonzaga in Special Proceedings No. 452of the CFI of Negros Occidental.

-The complaint alleges that plaintiff had a duly approved claim against the estate of P6,485.02; that administratrix violated theconditions of her bond (i.e. failed to file inventory, failed to pay approved claim of plaintiff, failed to render a true and just account of her

administration); and that defendant, as surety failed to pay plaintiff notwithstanding the latter’s demand.

-CFI rendered a summary judgment sentencing the defendant to pay plaintiff P6000, P900atty’s fees + costs.

Issue:

[1] W/N the lower court has jurisdiction to pass upon the liability of defendant under the bond in question.

[2] W/N plaintiff should first file a claim against the estate of the deceased administratrix, in conformity with section 6 of Rule 87 of the Rules of Court.

Held:

[1] Defendant contends that the lower court had no jurisdiction to pass upon its liability under the bond in question, because it is only the probate court that can hold a surety accountable for any breach by the administratrix of her duty.

-Court held that although the probate court has jurisdiction over the forfeiture or enforcement of an administrator’s bond, the same matter may be litigated in an ordinary civil action brought before the Court of First Instance.

-Though nominally payable to the Republic of the Philippines, the bond is expressly for the benefit of the heirs, legatees and creditors of the Estate of the deceased Aguedo Gonzaga. There is no valid reason why a creditor may not directly in his name enforce said bond in so far as he is concerned.

[2] Defendant alleged that plaintiff should have first filed a claim against the Estate of the deceased administratrix Agueda Gonzaga in conformity with Sec.6 of Rule 87 providing that “where the obligation of the decedent is joint and several with another debtor, the claim shall be filed against the decedent as if he were the only debtor, without prejudice to the right of the state to recover contribution from the other debtor.”

-Apart from the fact that this defense was not pleaded either in a motion to dismiss or in the answer and was therefore waived, it appears that even as the present complaint was filed, there were no proceedings for the administration of her estate. Where there are no proceedings for the administration of the estate of the deceased administrator, the creditor may enforce his bond against the surety which bound itself jointly and severally in the case where the bond was filed.