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04/14/95 CATHERINE S. DEBARDELEBEN AND NEWTON H.

April 14, 1995

CATHERINE S. DEBARDELEBEN AND NEWTON H. DEBARDELEBEN, JR.
v.
BETTY CAHILL DEBARDELEBEN



Appeal from Jefferson Circuit Court. (CV-93-3912).

Original Opinion of March 10, 1995, Reported at: 659 So. 2d 922

Maddox, Shores, Houston, Ingram, Cook, and Butts, JJ., concur. Kennedy, J., Dissents.

On Application for Rehearing

PER CURIAM.

APPLICATION OVERRULED.

Maddox, Shores, Houston, Ingram, Cook, and Butts, JJ., concur.

Kennedy, J., Dissents.

DeBardeleben v. DeBardeleben

KENNEDY, JUSTICE (dissenting).

I Dissented from the majority's opinion in this case, and I likewise Dissent from the denial of the application for rehearing. As I indicated in my earlier Dissent, I would hold that the will directs that the widow has the duty of routine maintenance and repairs. *fn1 Because I would so hold, my Dissent did not address the question ably raised on appeal by the remaindermen children: whether, if a majority of this Court held that the will did not direct that this was the duty of the widow, this duty would be that of the children.

On application for rehearing, the children state that the majority erred in holding that the will does not direct that the widow has the duty of routine maintenance and repairs. I agree, and I would grant the application for rehearing for this reason alone. In any event, however, the application for rehearing should be granted, if for no other reason than for the Court to address precisely how and why, if this is not the widow's duty, it is the children's.

In support of their application for rehearing, the children argue that where, as here, the will imposes no burden of repair or maintenance on the remaindermen, Alabama case law would not impose such a burden. The children state:

"The last paragraph of the Circuit Court's decree quoted by the majority opinion makes it clear that the trial Judge found the children liable for maintenance not because of any instruction from the testator, but because of his feeling that someone must be responsible for maintenance and 'that such obligation is of necessity that of the children, who hold title to the home.'[ *fn2 ] [(Citation omitted).]

"The children are not, however, 'owners,' nor do they 'hold title to the home' as the trial Judge assumed. Rather, as this Court observed, they merely 'acquired a remainder interest in the deceased's residence, subject to the widow's right to maintain possession.'[Citation omitted.] They have no right to occupy or enjoy the home; they have no access to it; they cannot sell or mortgage ...


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