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“Virginia Supreme Court Weighs In On The Importance Of Cemetery Rules & Regs To Determine Ownership of Interment Rights Upon Death Of A Lot Owner”

VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court Building in the City of Richmondon Thursday the 20th day of December 2018.

Present: All The Justices
Wallace A. Terry, Jr.,
against Record No. 171410
Circuit Court No. 2015-283
Karen Terry Rickett, Executrix of the
Estate of Wallace A. Terry, Sr., Deceased,
Appellant,
Appellee.
Upon an appeal from a judgment
rendered by the Circuit Court of the City of
Hampton.
Wallace A. Terry, Jr. ("Junior") appeals from the judgment of the circuit court
confinning the commissioner's report of debts and demands against the estate of Wallace A.
Terry, Sr. ("Wallace"), wherein the commissioner detennined that intennent rights owned by
Wallace were properly allocated by Karen Terry Rickett, executrix of the estate, as part of her
share of Wallace's residuary estate.
Upon consideration of the record, briefs, and argument of counsel, the Court is of opinion
that the judgment of the circuit court should be reversed.
I.
In 1972, Wallace executed a sales agreement with Peninsula Memorial Park ("PMP") for
the purchase of designated cemetery lots. The sales agreement provided that upon completion of
all payments, Wallace would receive a deed of ownership of the lots "subject to all the By-Laws,
Rules and Regulations of the Seller now or hereafter adopted, and to the Laws of the
Commonwealth of Virginia and subdivisions thereof now or hereafter in force." The agreement
was made "binding upon the heirs, executors, administrators, successors and assigns of the
parties hereto."

Rule 24 of the May 1994 revision of the "Rules and Regulations" of PMP provided, in
pertinent part, that if an owner of interment rights dies without having transferred unused
interment rights "either by a specific devise in the Owner's will or by a written direction
furnished to the Cemetery," the unused interment rights "descend to the heirs at law of the --- O-w--ne-r in accorda-n-ce with the laws of descent and distribution of the state in which the C-e-m-etery ..-
is located, subject to the Interment Rights of the deceased and his or her surviving spouse." Rule
........___ ~
23 provided that "4[u]pon receipt of an Order of Distribution by a court having jurisdiction over
the estate of a deceased Owner, the Cemetery shall revise its records to reflect ownership of
Interment Rights in accordance with such Order.,,1
In 1976, Wal1ace received a deed from PMP in which he was granted interment rights in
the cemetery lots designated in the sales agreement. The deed provided that use of the lots 4"shall
be subject to the By-Laws, Rules and Regulations now or hereafter adopted by and for [PMP],
and to the laws of the Commonwealth of Virginia, the ordinances of the City of Newport News,
Virginia, now or hereafter in force."
II.
--W-allace died testate on June 13, 2002, survived by his three children: Junior, Karen, and .-- ---- Johnie S. Terry. In Wallace's will, he bequeathed to Junior "any vehicle I own" stating he
''made no further provisions" for Junior since he designated Junior as beneficiar of his $5,000
insurance po icy. Wallace bequeathed the residue of his estate to Karen and Johnie and
nominated Karen as the executrix of his estate. Wallace did not bequeath his unused interment
rights 4'either by a specific devise in the Owner's will or by a written direction furnished to the
Cemetery," as provided for by the PMP' s rules and regulations.
When Karen initially qualified as executrix in 2002, her inventory of the estate listed
interment rights in two cemetery lots located in PMP valued at $5,990. In Karen's first and final
account for the estate, which was approved by the commissioner of accounts in 2005, she
allocated the interment rights to herself as part of her share of the residuary estate.
In 2016, Karen again qualified as executrix of Wallace's estate and filed an inventory
listing the interment rights in the two cemetery lots as the sole asset of the estate. She requested
1 Rules 23 and 24 are now designated as Rules 24 and 25 under the current version of
PMP's Rules and Regulations, dated January 2013.
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a hearing limited to the determination of disposition of the interment rights. Following the
hearing, the commissioner filed a report concluding that Karen properly allocated the interment
rights as part of her share of the residuary estate and recommending that the circuit court enter an
order of distribution giving effect to her action.
After Junior filed exceptions to the commissioner's report, the circuit court conducted a
hearing at which Walter Melvin, manager of PMP, testified that "pursuant to Rule 24, the
cemetery does not honor transfers of interment rights via residual clause[ s] of a will, but that the
cementery would honor an Order of Distribution from a court of competent jurisdiction, pursuant
to Rule 23." The circuit court entered an order confirming the commissioner's report and a
....._____ ... .
subsequent order in which it "re-confirmed" the commissioner's report upon consideration of
Junior's motion for reconsideration.
III.
On appeal, Junior asserts that the circuit court erred in overruling his exceptions to the
commissioner's report and contends that, pursuant to PMP's Rules and Regulations, Wallace's
interment rights descended to his heirs at law. We agree.
Wallace purchased the cemetery lots subject to the Rules and Regulations of PMP, and,
therefore, his power to transfer the interment rights was contractually limited by those
provisions. As we have recognized, the purchaser of a cemetery lot "acquires no absolute --- interest in or dominion over such lot, but merely a qualified and usufructuary right for the
purposes to which the lots are devoted and for which they are set apart by the company."
Roanoke Cemetery Co. v. Goodwin, IOI Va. 605, 610 (1903). We have characterized title to
cemetery lots as being "in the nature of an easement, with the exclusive right to bury in the lots,
subject to the general proprietorship and control of the association, in whom the legal title is
lodged." Id hAll purchasers from such companies are affected with notice of the limitations
placed upon their holdings by the law of the land, and the charter, constitution, and by-laws of
the company made in pursuance thereof.., Id.
Specifically, pursuant to Rule 24 of PMP's Rules and Regulations, if a cemetery lot
owner dies without having transferred unused interment rights "either by a specific devise" in the
owner's will or "by a written direction furnished to [PMP]," the unused interment rights
"descend to the heirs at law of the Owner in accordance with the laws of descent and
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distribution.'' Therefore, under Rule 24, while Wallace could transfer ownership of his interment
rights by a specific devise in his will or by written direction furnished to PMP, he could not
transfer his interment rights by a residuary clause in his will. Compare Jimenez v. Corr, 288 Va.
395, 412~13 (2014) (recognizing that a testator may enter into a contract limiting the testator's
ability to dispose of certain property by will). Because Wallace did not transfer ownership of his
interment rights by a specific devise in his will or by written direction furnished to PMP, his
interment rights descended to his heirs at law pursuant to the Rules and Regulations of PMP.2
IV.
For these reasons, we conclude the circuit court erred in overruling the exceptions to the
commissioner's report and confirming the commissioner's determination that the interment
rights were properly allocated by Karen as part of her share of the residuary estate. We,
therefore, reverse the judgment of the circuit court and enter final judgment ruling that the
interment rights descended to the heirs at law of WaJJace A. Terry, Sr., to wit Wallace A. Terry,
Jr., Karen Terry Rickett, and Johnie S. Terry.
This order shall be certified to the said circuit court.
A Copy,
Teste:
Signature of
Clerk
2 Rule 23, stating that PMP shall revise its records to reflect ownership in accordance
with an order of distribution from a court having jurisdiction over the estate of a deceased owner,
does not allow for an alternative method of transfer of ownership of interment rights, but rather
effectuates Rule 24 by providing for notification to PMP of the transfer of interment rights
pursuant to the terms of Rule 24.
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