Facts
In this case, the executor has requested the continuation of proceedings by acting on behalf of the estate, whose members are named. The payment order was drawn up in accordance with this request. However, the pronouncement of the release of the seizure does not mention the executor in the statement of the parties to this instance. The respondent then opened an action for debt release against the three heirs constituting the estate, specifying that by virtue of Art. 560 CC, he was seeking them because they "are personally liable" for the debts of the deceased. The executor raised an incident concerning his role in this trial.
Considerations
According to case law, the executor is a party to the proceedings concerning the assets and liabilities of the estate insofar as the administration of the estate assets is entrusted to him pursuant to Art. 518 CC. There is no question of his capacity to act or to defend, which is governed by substantive law. The executor must refer to his legal authorization, based on the existence of a special estate that he must administer. He therefore intervenes in his official capacity in his own name and he alone is authorized to bring actions for payment or for the establishment of rights and, in principle, to resist such actions concerning estate assets.
However, the heirs are in principle jointly and severally liable - and also with all their personal assets - for the debts of the deceased (Art. 560(2) and 603(1) CC). Therefore, the creditor who wishes to proceed against both the undivided estate assets and the personal assets of an heir must sue both that heir and the executor.
In this case, the Cantonal Court rightly recognized the powers of the executor, and therefore his status as a party as a…