Upon the death of a defendant in an action, wherein the right of any part thereof survives against his personal representatives, the revivor shall be against him, and it may also be against the heirs or devisees of the defendant, or both, when the right of action or any part thereof survives against them.

History: Laws 1884, ch. 5, § 11; C.L. 1884, § 2148; C.L. 1897, § 3097; Code 1915, § 4274; C.S. 1929, § 105-1212; 1941 Comp., § 19-711; 1953 Comp., § 21-7-11.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Cross references. — For limitation on revivor against representative or successor of a defendant, absent consent, see 37-2-13 NMSA 1978.

For substitution of parties upon the occurrence of various contingencies, including death of a party, see Rule 1-025 NMRA.

Revival of actions at law is purely statutory, and they may be revived only as prescribed by this section. A.J. Armstrong Co. v. Hufstedler, 1965-NMSC-091, 75 N.M. 408, 405 P.2d 411.

Against whom revivor may be had. — This section does not permit a revivor against either the personal representative or the heirs or devisees, at the plaintiff's election and without regard to the nature of the action; revivor may only be against the person against whom the right of action involved in the litigation survives. A.J. Armstrong Co. v. Hufstedler, 1965-NMSC-091, 75 N.M. 408, 405 P.2d 411.

"Personal representative". — The personal representative of a decedent's estate, within the meaning of the survival statute, is his executor or administrator. A.J. Armstrong Co. v. Hufstedler, 1965-NMSC-091, 75 N.M. 408, 405 P.2d 411.

Revivor against personal representative essential. — A pending action cannot be prosecuted after the death of a party defendant, so as to affect his estate, until it is revived against his personal representative or successor in interest. A.J. Armstrong Co. v. Hufstedler, 1965-NMSC-091, 75 N.M. 408, 405 P.2d 411.

Where the action brought against decedent prior to his death was on account of an alleged breach of an agreement to execute a note, and unquestionably affected his personal estate, since it would require payment by the personal representative in the event of a money judgment, the action could only continue after his death against his estate, and revivor would have to be against his personal representative, an indispensable party. A.J. Armstrong Co. v. Hufstedler, 1965-NMSC-091, 75 N.M. 408, 405 P.2d 411.

Failure to revive against personal representative. — Judgment in plaintiff's favor following substitution by court order of widow of defendant, who had died pendente lite, as his heir and "personal representative," where in fact no personal representative had been appointed for the estate, would be dismissed for failure to revive against decedent's personal representative. A.J. Armstrong Co. v. Hufstedler, 1965-NMSC-091, 75 N.M. 408, 405 P.2d 411.

Claim against estate unnecessary. — The revival of a suit pending against a decedent at the time of his death, within the time for filing claims against the estate, dispenses with filing the claim against the estate. Romero v. Hopewell, 1922-NMSC-037, 28 N.M. 259, 210 P. 231.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 1 Am. Jur. 2d Abatement, Survival and Revival § 120.

1 C.J.S. Abatement and Revival § 164.