Opinion
No. 05-02-01051-CV.
Opinion Filed April 8, 2003.
Appeal from the Probate Court No. 3, Dallas County, Texas, Trial Court Cause No. 00-3528-P3.
AFFIRM.
Before Justices JAMES, BRIDGES and RICHTER.
MEMORANDUM OPINION
Appellants filed a petition in the probate court for the appointment of a Texas based "successor trustee" in order to transfer the corpus and administration of a Virginia testamentary trust to this state. Appellants relied on a Virginia statute to assert that such transfers are permissible. The current Virginia testamentary trustee opposed the petition. After a hearing, the trial court denied the appellants relief. Findings of fact and conclusions of law were entered. Appellants bring eight issues on appeal. In all but their sixth and seventh issues, appellants generally complain that the trial court erred in failing to appropriately apply Virginia law under the doctrine of comity and conflict of law principles. In their sixth issue, appellants complain that the trial court weighed the interest of the trustee over that of the beneficiaries when it concluded that appointment of a non-resident trustee would impermissibly cloud title to trust assets. In their seventh issue, appellants assert that the judgment is against the great weight and preponderance of the evidence so as to be clearly wrong and unjust. The facts of this case are known to the parties, and we recite only those necessary for the disposition of this appeal. We affirm the judgment of the trial court.
Background
Appellants are the current beneficiary and a contingent beneficiary of a Virginia testamentary trust that was established pursuant to the will of Walter D. Rosenberg. Walter D. Rosenberg died in 1976, and his will was admitted to probate in Virginia. Since 1976, the trust situs has been Virginia. Appellants reside in Texas. Due to discord between the beneficiaries and the trustee, the beneficiaries sought to utilize a provision of Virginia law to effectuate a transfer of the trust to a new trustee in Texas.
Standard of Review
In Texas, as well as in Virginia, the general standard of review for "procedural or other trial management decisions" is whether the complained of actions were an abuse of discretion. In re Doe, 19 S.W.3d 249, 253 (Tex. 2000); see also Am. Online, Inc. v. Nam Tai Elecs., Inc., 571 S.E.2d 128, 134-35 (Va. 2002) (applying abuse of discretion standard to trial court's resolution of comity question presented by California law). Legal questions are reviewed de novo in Texas. Moore v. Key, 2003 Tex. App. LEXIS 918, ___ S.W.3d ___ (Tex.App.-Dallas 2003, no pet. h.); State v. Heal , 917 S.W.2d 6, 9 (Tex. 1996); Town of Flower Mound v. Stafford Estates , 71 S.W.3d 18, 26 (Tex.App.-Ft. Worth 2002, pet. granted).
Applicable Law
The parties agree that Virginia law controls the disposition of this case. However, they do not agree on the application of Virginia law. Appellants assert that the following Virginia statute authorizes Texas to appoint a "successor trustee." Virginia Code § 26-64 provides in pertinent part:
Disregarding jurisdictional issues that are not properly before us and that we decline to address sua sponte.
§ 26-64. Order to resident trustee to transfer estate to nonresident trustee; securing payment of taxes.
When any personal estate in this Commonwealth is vested in a trustee resident therein, and those having the beneficial interest in such estate are nonresidents of this Commonwealth, the circuit court of the county, or circuit or corporation court of the corporation, in which such trustee resides, may, on a petition or bill in equity, filed for that purpose, order him or his personal representative to pay, transfer, and deliver such estate, or any part of it, to a nonresident trustee appointed by some court of record in the state in which the beneficiaries reside or to a nonresident individual trustee named in the instrument creating such trust who has qualified before some court of record in the state in which such named trustee resides.
. . . .
Va. Code Ann. § 26-64 (Michie Supp. 2002).
Texas does not have an analogous provision to Virginia statute § 26-64.
Appellee asserts that the more specific Virginia statute § 26-46.2 controls. That section provides in relevant part:
§ 26-46.2 Jurisdiction for qualification of trustee; qualification and bond; when surety not required.
In the case of testamentary trusts, if the will has been admitted to probate in this Commonwealth, the jurisdiction where the will has been probated shall be the exclusive jurisdiction for qualification of the trustee or trustees of such will.
. . . .
Va. Code Ann. § 26-46.2 (Michie Supp. 2002) (emphasis added).
In Virginia, under principles of statutory construction, a court will endeavor to ascertain and give effect to the intention of the legislature. Halifax Corp. v. First Union Nat'l Bank, 546 S.E.2d 696, 702 (Va. 2001). A Virginia court will look first to the actual statutory words used, unless a literal construction would involve a manifest absurdity. Id. Where the Virginia legislature has used words of a "plain and definite import," the court cannot construe them in such as way as to hold that the legislature did not mean what it has actually expressed. Id. Further, when the legislature includes specific language in one section of a statute, but omits that language from another section of the statute, a Virginia court will presume that the exclusion was intentional. Id. "When one statute speaks to a subject in a general way and another deals with a part of the same subject in a more specific manner, . . . where they conflict, the latter prevails." Halifax, 546 S.E.2d at 703 (quoting Dodson v. Potomac Mack Sales Serv., 400 S.E.2d 178, 191 (Va. 1991) (quoting Virginia Nat'l Bank v. Harris, 257 S.E.2d 867, 870 (Va. 1979))); County of Fairfax v. Century Concrete Servs., 492 S.E.2d 648, 650 (Va. 1997); City of Winchester v. Am. Woodmark, 250 Va. 451, 460, 464 S.E.2d 148, 153 (Va. 1995).
Application of Law to the Facts
The parties acknowledge that only one reported case has ever dealt with the subject matter of Virginia Code § 26-64. See, Coltrane v. Worrell, 71 Va. (30 Gratt.) 434 (1878)(construing almost identically worded predecessor statute enacted in mid-1800s). That case, in obiter dictum, described the process whereby a Missouri trustee was appointed by a Missouri court before a Virginia court transferred the Virginia trust to the Missouri trustee. Important to our analysis is the fact that Coltrane involved an inter vivos trust as opposed to a testamentary trust. Since the time Virginia Code § 26-64 was enacted in 1919, no case has cited it. Va. Code Ann. § 26-64 (Michie Supp. 2002).
Virginia Code § 26-46.2 was enacted in 1964. Va. Code Ann. § 26-46.2 (Michie Supp. 2002). By its express terms, it specifically applies to testamentary trusts. Further, in all cases wherein a will has been admitted to probate in Virginia, Virginia "shall be the exclusive jurisdiction for qualification of the trustee. . . ." Id. We note that § 26-46.2 was latter enacted, and is more specifically applicable than § 26-64.
Applying Virginia law, we hold that the Virginia courts have exclusive jurisdiction to determine the qualification of the trustee in this Virginia testamentary trust. Va. Code Ann. § 26-46.2 (Michie Supp. 2002). Because we agree with the trial court's conclusion of law that Virginia Code § 26-46.2 is controlling in this case, we need not address appellant's arguments concerning comity and choice of law. The other complained of findings and conclusions concerning the public policy of Texas and whether appointment of a non-resident trustee would impermissibly cloud title to trust assets are not necessary to support the judgment of the trial court. See, e.g., Texas Dep't of Pub. Safety v. Stockton, 53 S.W.3d 421, 423 (Tex.App.-San Antonio 2001, no pet.)("Conclusions of law will be upheld on appeal if the judgment can be sustained on any legal theory supported by the evidence . . . ."); Vinson v. Brown, 80 S.W.3d 221, 230 (Tex.App.-Austin 2002, no pet.)(same holding). As consideration of these issues is not necessary to the resolution of this appeal, we need not address them further.
Conclusion
We affirm the judgment of the trial court.