Present:    All the Justices

CESAR DAVID HUAMAN

v.   Record No. 051798         OPINION BY JUSTICE DONALD W. LEMONS
                                          June 8, 2006
ALDO HUAMAN AQUINO, ET AL.

            FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                      Paul F. Sheridan, Judge

      In this appeal, we consider whether the trial court erred

in ruling that settlement proceeds from a lawsuit filed in

Washington, D.C. that came into the testator’s estate should

be distributed as personal property under the will.

                  I.   Facts and Proceedings Below

      In 1999, Carmen Hilda Ore Aquino (“testator”) died

testate and was survived by her six brothers.     After specific

bequests, her will directed that her remaining real and

personal property be shared equally among three of her

brothers:   Carlos Manuel Ore Aquino, Virgilio Oscar Huaman

Aquino, and Aldo Dionicio Huaman Aquino (“Carlos,” “Oscar,”

and “Aldo”).   A residuary clause directed that the remainder

of her estate be distributed “to [her] brothers in equal

parts.”    The will designated two co-executors, her attorney

Gracelia R. Helring (“Helring”) and her brother Cesar David

Huaman Aquino (“Huaman”).1     The will was submitted to probate


      1
       The will erroneously referred to Huaman as the
testator’s nephew, but it is undisputed by the parties that he
is, in fact, one of the six surviving brothers. Further, we
in Arlington County, Virginia, where Helring and Huaman

qualified as co-executors of the estate.

     Two years prior to her death, the testator suffered

serious injuries during an apartment building fire in

Washington, D.C.   Thereafter, she was unable to care for

herself, and spent the remainder of her life (when not

hospitalized) with Huaman in Arlington, Virginia.   She filed a

personal injury action in Washington, D.C. against the company

that managed the apartment building seeking damages caused by

the fire, however she died while the litigation was pending.

After her death, the suit was amended to include both survival

and wrongful death counts under the law of the District of

Columbia.   The suit was settled, and the net proceeds of the

settlement to the estate were $1,778,578.

     The sole dispute in this case arose when portions of the

settlement proceeds were distributed from the estate.    The

first distribution occurred in July to August 2000 when

$100,000 distributions were paid equally to Oscar, Aldo, and

Carlos, totaling $300,000 from the settlement proceeds.

Huaman and Helring disagreed about the mode of distribution

because Huaman maintained that the settlement proceeds should

be shared equally among all the surviving siblings.


note that Huaman chose not to use “Aquino” during this appeal,
and instead has identified himself by “Huaman” for clarity.
We will do the same.

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Nevertheless, he took no formal action because the siblings

actually shared the initial distribution equally pursuant to

an oral agreement.   Pursuant to the agreement, Oscar, Aldo,

and Carlos each paid $50,000 to the other three siblings:

Huaman, Franklin Gustavo Aquino (“Franklin"), and Rafael

Javier Huaman Aquino (“Rafael”).

     The next distribution occurred during January and

February 2003, when Helring paid $300,000 each to Oscar, Aldo,

and Carlos, totaling $900,000 from the settlement proceeds.

On this occasion, only Oscar paid half of his distribution,

$150,000, to his brother Franklin.   Aldo and Carlos decided to

keep their full distribution, and this dispute ensued.2

     Upon Huaman’s demand that Helring cease any further

distributions from the estate, she filed a “Motion to Construe

a Will” in the Circuit Court of Arlington County.   Huaman and

Helring were the parties to that action.   The Honorable Joanne

Alper entered an order on March 7, 2003, favoring Huaman’s

interpretation of the will that each sibling should share the

settlement proceeds equally pursuant to the residuary clause

of the will.   Thereafter, Helring resigned as co-executor of

the estate, and Huaman qualified as the sole executor.




     2
       No further distributions have been made from the
settlement proceeds that remain in the estate.

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     Huaman sent demand letters to Oscar, Aldo, and Carlos

notifying them of the court’s ruling and directing them to

return their 2003 distributions to the estate for re-

distribution.   They did not reply.   Huaman then filed a Bill

of Complaint against the other five siblings seeking a

declaratory judgment regarding the interpretation of the will,

imposition of a constructive trust upon the 2003 distributions

paid from the estate, or alternatively judgment against

Carlos, Oscar, and Aldo on the basis of unjust enrichment

totaling $900,000.

     The Honorable Paul F. Sheridan vacated the March 7, 2003

order entered by Judge Alper holding that the court had lacked

jurisdiction because all necessary and indispensable parties

were not before the court at the time.   Upon the arguments

concerning the interpretation of the will, the trial court

held that “the lawsuit that existed prior to [the testator’s]

death and the settlement proceeds are personal property,

governed by the [personal property paragraph] of the Will.”

As a result, the trial court ordered that the settlement

proceeds be shared equally among the three beneficiaries

designated in the personal property clause:   Oscar, Aldo, and

Carlos.   Huaman’s appeal to this Court is limited to one

assignment of error:   whether the trial court erred when it

held that the settlement proceeds, obtained after the death of


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the testator, should pass to the beneficiaries according to

the personal property clause rather than the residuary clause.

                          II.   Analysis

     We note at the outset that the facts presented in this

case create an uncommon scenario that would be impossible to

duplicate under Virginia law governing personal injury

actions.   It is well settled in the Commonwealth that an

action for personal injury does not survive death, and our

wrongful death statute creates a new right of action brought

on behalf of the statutory beneficiaries, and not the estate.

E.g., Wilson v. Whittaker, 207 Va. 1032, 1035, 154 S.E.2d 124,

127 (1967); Richmond, F. & P. R. Co. v. Martin, 102 Va. 201,

203, 45 S.E. 894, 894 (1903).   Our analysis in this case is

affected by the law of the District of Columbia and no part of

this opinion is intended to disturb the well-developed law

pertaining to actions for personal injury and wrongful death

in Virginia.

     There is only one matter to be resolved in this appeal:

the proper distribution of the settlement proceeds that came

into the testator’s estate several years after her death.

During the course of the litigation below, none of the parties

maintained that the settlement proceeds were improperly paid

into the estate.   Additionally, the parties have relied solely

upon Virginia law for the resolution of this matter.


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Therefore, we are guided by familiar principles expressed in

our case law.

     "The cardinal principle of will construction is that the

intention of the testator controls; the problem is to

ascertain it."   Gillespie v. Davis, 242 Va. 300, 303, 410

S.E.2d 613, 615 (1991) (citing Clark v. Strother, 238 Va. 533,

539, 385 S.E.2d 578, 581 (1989)).   The testator's intent

should be determined from the language of the document, when

possible.   Id. (citing Baker v. Linsly, 237 Va. 581, 585, 379

S.E.2d 327, 329 (1989)).   The disagreement regarding the

language of the will in this case centers upon whether the

personal property clause or the residuary clause controls the

distribution of the settlement proceeds.

     The trial court held that the third paragraph of the will

controls the distribution.   It states in pertinent part:

     Personal property: I give, devise and bequeath
     to my brothers, Carlos Ore Aquino, Oscar Huaman
     Aquino and Aldo Huaman Aquino, in equal parts,
     share and share alike, all the personal
     property I own or over which I have disposing
     power at the time of my death, including funds
     in any and all financial accounts.

Huaman concedes that the settlement proceeds constitute

personal property.   However, he argues the personal property

clause does not control because the testator neither owned nor

had power to dispose of such property, namely the proceeds, at




                                6
the time of her death – an express restriction of the personal

property clause.

     Huaman argues that the residuary clause must control the

distribution of the settlement proceeds.   It provides:

     All the rest residue and remainder of my
     estate, real, personal or mixed, of whatever
     nature and wherever situate, I give, devise and
     bequeath to my brothers in equal parts, share
     and share alike.

By contrast, appellees maintain that the “cause of action” was

personal property that the testator owned before her death;

consequently, the distribution must be under the personal

property paragraph.

     The provisions of this will are not ambiguous.    Thus, the

resolution of this appeal centers upon whether the testator

“owned” or had “power to dispose” of the personal property in

question at the time of her death.   The trial court held that

“[t]he cause of action predating the death of the Testator was

an item of personal property she owned.”   We agree.   The

testator’s personal injury claim was a chose in action, “a

personal right not reduced into possession, but recoverable by

a suit at law.”    First Nat'l Bank v. Holland, 99 Va. 495, 503-

504, 39 S.E. 126, 129 (1901); Richmond v. Hanes, 203 Va. 102,

106, 122 S.E.2d 895, 898 (1961) (“a right to damages arising ex

delicto is recognized as being a chose in action”).    A chose in

action is intangible personal property.    E.g., Teed v. Powell,


                                 7
236 Va. 36, 40, 372 S.E.2d 131, 134 (1988); Iron City Sav. Bank

v. Isaacsen, 158 Va. 609, 628, 164 S.E. 520, 526 (1932).

        A chose in action is “owned” by the possessor of the

right to recover, and generally such ownership can be

bequeathed in a will.    See Teed, 236 Va. at 40, 372 S.E.2d at

134 (testator’s security interest was chose in action passing

under the will); Koss v. Kastelberg, 98 Va. 278, 281-82, 36

S.E. 377, 378 (1900) (choses in action used in connection with

testator’s business passed under the will).    Ordinarily, a

personal injury action is an exception to this general rule

because it expires at the moment a person bringing such action

dies.    Richmond, 203 Va. at 106, 122 S.E.2d at 898.   However,

in this instance the chose in action did not expire under the

laws of the District of Columbia.     For this reason, the

general rule, rather than the exception, is applicable here.

This particular chose in action was “owned” at the moment of

the testator’s death, and accordingly the proceeds derived

from the action pass under the personal property clause to

Carlos, Oscar, and Aldo.

        Huaman argues that a bequest of this sort is tantamount

to an “assignment” of the personal injury action that violates

Virginia law.    However, he failed to raise this argument in

the trial court.    We will not consider matters raised for the




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first time on appeal.   Rule 5:25; see also Cangiano v. LSH

Bldg. Co., 271 Va. 171, 183, 623 S.E.2d 889, 896 (2006).

                        III.   Conclusion

     For these reasons, we hold that the testator “owned” her

personal injury action at the time of her death, that it was a

chose in action that survived her death pursuant to the law of

the District of Columbia, and the proceeds obtained from the

settlement should pass under the personal property clause of

her will.   Therefore, Carlos, Oscar, and Aldo are entitled to

equal shares of the settlement proceeds.    We will affirm the

judgment of the trial court.

                                                        Affirmed.




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