Huaman v. Aquino

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

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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

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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,

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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.