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 
2

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. 
3

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. 
4

 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 redistribution. 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, 
8

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.