Succession of Gerald P. Begnaud Sr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-232

SUCCESSION OF GERALD P. BEGNAUD SR.

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2011-902499-A
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett,
and Shannon J. Gremillion, Judges.

AFFIRMED.

David Lafargue
Lafargue Law Office
313 N. Main St.
P.O. Box 277
Marksville, LA 71351
(318) 253-7521
COUNSEL FOR APPELLANTS:
Gerald P. Begnaud Jr.
Charleen Begnaud Gremillion

Kerry L. Spruill
219 N. Main St.
P.O. Box 977
Marksville, LA 71351
(318) 240-7501
COUNSEL FOR APPELLEE:
Peggy Begnaud

GREMILLION, Judge.

The children of the deceased, Gerald P. Begnaud (Gerald), appeal the trial

court’s ruling in favor of their stepmother, Peggy Begnaud (Peggy), allowing her

to be interred in the family cemetery existing next to the family home of which

they are the naked owners. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Gerald died testate on June 16, 2011. Gerald was first married to Katherine

Harper Begnaud, the mother of the appellants, Gerald Begnaud, Jr. and Charleen

Begnaud Gremillion (collectively referred to as “the children”). Gerald then

married Peggy in 1991, but they divorced on April 29, 2002. However, Gerald and

Peggy remarried on October 6, 2010.

Gerald filed an application for a family burial ground on March 12, 2010, in

the presence of a notary public. Gerald was listed as owner and Peggy signed the

application as “an additional family member.”

In June 2012, the children filed a partial judgment of possession and a rule to

show cause. Peggy filed a rule to show cause pertaining to the partial judgment’s

exclusion of the Begnaud Cemetary in the detailed descriptive list. The trial court

issued a judgment on the rule in August 2012, recognizing the children as the

owners of the burial ground, subject to Peggy’s right to visit and maintain the

Begnaud Cemetary and the parties’ rights to litigate issues relating to interment in

the cemetery.

Peggy filed a petition for declaratory judgment seeking judicial recognition

of her right to be buried in the Begnaud cemetery next to her husband. Although

the parties were able to settle various disputes regarding other immovable and

movable property, the parties were unable to agree on Peggy’s right to be interred

in the family cemetery.

Following a November 2012 trial, the trial court issued written reasons for

ruling on December 13, 2012, and granted Peggy’s motion for declaratory

judgment on December 19, 2012. The children now appeal and assign as error the

trial court’s grant of a declaratory judgment in favor of Peggy awarding her

interment rights in the family cemetery.

DISCUSSION

The trial court noted that this represents a novel issue. It found that the

Begnaud cemetery was a family burial ground pursuant to La.R.S. 8:1(22); that

Peggy signed the application for the family burial ground as an “additional family

member;” and that, at Gerald’s death in June 2011, Gerald and Peggy were

“family.” The trial court concluded that Peggy “shall be admitted to the Begnaud

cemetery upon her death.” We find no error in this ruling.

Louisiana Revised Statute 8:803, titled “Descent of title to cemetery space,”

states:

Except as herein otherwise provided, every right of interment
and cemetery space shall be subject to the laws of Louisiana
pertaining to community property, inheritance, including but not
limited to the laws of intestacy, donations inter vivos and mortis causa,
and successions.

Gerald’s October 5, 2004 last will and testament stated in part:

2.
I give, will[,] devise, grant and bequeath to Peggy Cunningham
Begnaud the right to live in the family residence which we have
shared together at Highway 105, Simmesport, Louisiana, until her
death. I further, give, will, devise, grant and bequeath to Peggy
Cunningham Begnaud the sum of $1,000.00 per month for the balance
of her life which monies are to be used to run the house which
includes payment of all utilities, telephone and yard expenses. This
right of habitation and the monthly payments shall terminate in the

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event that Peggy Cunningham Begnaud should vacate the family
residence for a period of 60 consecutive days or fails to use the family
residence as her primary residence.

2. [sic]
I give, will, devise, grant and bequeath the balance of my
property which I may own at the time of my death, of every nature,
kind and description, to my two children equally, namely, Gerald P.
Begnaud, Jr. and Charleen Begnaud Gremillion.

The will further appointed the children as co-executors of Gerald’s estate.

Louisiana Revised Statute 8:1(22) defines a family burial ground as a

“cemetery in which no lots are sold to the public and in which interments are

restricted to a group of persons related to each other by blood or marriage.”

Louisiana Revised Statute 8:806 states:

When the record title to a cemetery space or right of interment
is in the names of two or more persons, each shall be considered as
having a vested right therein and no conveyance or other disposition
of said space or right shall be recognized without the written
concurrence of each said record owner, but each owner shall have the
right of interment in any unoccupied portion of the cemetery space at
the time of death.

Peggy testified that she and Gerald commenced living together in 1983 and

married in 1991. Peggy and Gerald divorced in 2002. Peggy said that she and

Gerald physically separated for about a year-and-a-half, then resumed cohabitating,

and eventually remarried on October 6, 2010. They remained married until

Gerald’s death.

Peggy admitted that the house was Gerald’s separate property; that the land

on which it is situated was his separate property; and that pursuant to a prenuptial

agreement executed before the first marriage in 1991, the house and surrounding

land remained his separate property. She further admitted that, at the time the

application for the family burial ground was submitted, she and Gerald were not

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married, nor were they married at the time the cemetery space was dedicated on

January 5, 2010; however, she said that they were living together.

Peggy recounted the conversation she had with Gerald regarding the family

cemetery. Peggy testified that at Gerald’s behest, she contacted Mike Kelly, an

attorney, regarding the formation of the family cemetery for them. Peggy

discussed the “Application for Family Burial Ground” that was filled out by Gerald

and submitted to the Louisiana Cemetery Board. Gerald signed the form as the

owner and Peggy signed above the area designated “Additional Family Member’s

Signature/Relationship.” Peggy then reviewed the “Act of Dedication” describing

the land adjacent to the house to be used as a family cemetery. Peggy described it

as being in the backyard. Peggy stated that Gerald wished for her and their poodle,

Tootie, to be buried next to him. Peggy constructed her and Tootie’s vaults after

Gerald’s death. She admitted that she did not request the children’s permission to

erect her or Tootie’s vaults. A photograph submitted into evidence shows Gerald’s

vault and Peggy’s vault with Tootie’s vault situated in the middle. Tootie, who

died two months after Gerald, has been buried in the cemetery.

Charleen Gremillion testified that she discussed with her father his wishes

regarding the cemetery plot prior to his death. She said it was always understood

that Peggy would go back to Tennessee to be buried with her family. Charleen

stated that her father kept Peggy “at arm’s length” and kept his property separate.

She noted that no one is listed on the “Application for Family Burial Ground”

under item number six that states “list the name, business address and residence

address of each owner and one additional family member(s).” Further, at the time

Peggy signed the application she did not list her relationship to the owner, as she

and Gerald were divorced at the time.

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Gerald Jr. testified that he regularly spent time visiting with his father and

Peggy. He acknowledged that they were physically together except for a brief

period of separation.

There is no dispute that the children are the current owners of the cemetery.

This case presents an interesting issue regarding a property owner’s rights versus a

spouse’s right to be buried in a family burial ground, even if the spouse is not a

part owner of the underlying ground.

Although there is no jurisprudence on this issue, a spousal preference exists

in other areas involving the right to control interment. For example, La.R.S. 8:655

gives a surviving spouse preference over the adult surviving children in controlling

interment of the deceased when a written and notarized document does not instruct

otherwise and an action for divorce has not been filed prior to death. See also

La.R.S. 8:659. Similarly, we find that the legislature intended to give a surviving

spouse a preferential right to be interred in the family burial ground. Although

La.R.S. 8:1(22) does not expressly confer the right to interment, it presupposes that

those who are family, by either blood or marriage, of the owner have a right to

buried there. Legally, as a relative by marriage to the former owner, Gerald, Peggy

has the right to be interred in the cemetery pursuant to the plain language of La.R.S.

8:1(22).

Furthermore, there is no manifest error in the trial court’s finding that Gerald

intended for Peggy to have the right of interment in the family cemetery. The fact

that Peggy and Gerald were together for over twenty-five years is undisputed.

They married each other twice. Peggy’s participation in the joint application for

the burial ground, Gerald’s inclusion of her signature on the document, his

bestowal of a usufruct to Peggy over the adjacent home, and his remarriage to

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Peggy, are evidence of Gerald’s intent to also bestow upon Peggy an interment

right near him in the family cemetery. Further evidence of his intent is in the

testimony of a friend who said she heard many conversations in which Gerald

expressed his desire that Peggy be buried next to him.

CONCLUSION

For the above reasons, the judgment of the trial court is affirmed. All costs

of this appeal are assessed to Gerald Begnaud, Jr. and Charlene Gremillion.

AFFIRMED.

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