
    Catherine S. DeBARDELEBEN and Newton H. DeBardeleben, Jr. v. Betty Cahill DeBARDELEBEN.
    1930908.
    Supreme Court of Alabama.
    March 10, 1995.
    On Application for Rehearing April 14, 1995.
    
      Kennedy, J., filed opinions dissenting from both decision and overruling of application for rehearing.
    C. John Holditch, Birmingham, for appellants.
    Frank M. Bainbridge of Bainbridge, Mims & Rogers, Birmingham, for appellee.
   PER CURIAM.

Newton H. DeBardeleben, Sr. (“the deceased”), died in 1979, survived by his wife, Betty Cahill DeBardeleben (“the widow”), and two adult children from a previous marriage, Catherine DeBardeleben and Newton DeBardeleben, Jr. (“the children”). Under “Item Six” of the deceased’s will, the children acquired a remainder interest in the deceased’s residence, subject to the widow’s right to maintain possession until the first of the following events occurred: her death, her remarriage, or her voluntary termination of possession. Item Six specifically provided, in part:

“My said wife shall have the right to use said home without rent and without bond, provided she shall keep the same adequately insured against loss or damage by fire or other hazards, shall pay all insurance premiums and all taxes and assessments, and shall maintain and keep the same in good condition and repair, normal wear and tear excepted.”

The widow, who had remained unmarried and in possession of the residence, sued the children in 1993, seeking a judgment declaring that the children were responsible for the cost of maintenance and repairs necessitated by normal wear and tear to the residence. The widow alleged that “gradually through the passage of time and as a result of normal wear and tear” the home had “badly deteriorated.” A report prepared by an engineer stated that the house was “in below average condition due to the lack of routine maintenance over an extended period of time.” The trial court entered a judgment for the widow, holding that the children were responsible under the deceased’s will for the cost of routine maintenance and repairs necessitated by normal wear and tear, and awarding $19,-375.55 in damages to cover the cost of repairs needed to restore the residence.

After carefully reviewing the record and the briefs, and after considering the respective arguments of the widow and the children — each side contending that under Item Six of the deceased’s will the other is financially responsible for maintaining and repairing the residence — we agree with the rationale of the trial court, as expressed in the following paragraphs of its judgment:

“Notwithstanding the conflicting interpretations argued by the Widow and the Children concerning the language of Item Six, the Court finds the language of the Will on its face is clear and unambiguous. The Widow’s obligation to repair and maintain in good condition, as affirmatively set forth in the Will, specifically excludes from that obligation any liability for the cost of repairs occasioned by ‘normal wear and tear.’ If a storm causes a tree to fall and damage the home, the Widow is obligated to repair damage from this hazard, and the Widow is obligated to keep insurance in place to assist her in this regard. But the Widow is exempted from maintenance and repairs caused by normal wear and tear. Such is an express limitation or exception to the Widow’s duty to maintain and repair imposed by Item Six of the Will.
“Reading the Will as a whole, the Court finds that the primary intent of the testator as set forth in Item Six was to give his Widow the right of possession of the home under certain conditions while giving title to the home to the Children. Item Six of the Will details certain expenses which are taxed to the Widow as an incident of her right to possession (i.e., the cost of adequate ... insurance against loss or damage by fire or other hazards, ... and (the expense of) all taxes and assessments.... ’ As noted, the language of Item Six expressly excludes from the expenses to be paid by the Widow any repair or maintenance which arises from ‘normal wear and tear.’
“The Court holds, as to deterioration caused by the passage of time and/or arising from normal wear and tear, that the Widow has no obligation to pay the cost of maintenance or repair necessary to remedy such condition, the same being expressly excepted from her obligation under Item Six of the Will. Publishers Bldg. Co. v. Miller, 25 Wash.2d 927, 172 P.2d 489 (1946), and 51c C.J.S. Landlord and Tenant, Section 368(9), p. 968 [(1968)].
“The Children, who hold title to the home, next contend that nowhere in Item Six (or elsewhere in the Will) is there an express provision charging the Children with the cost of repairs. The Children contend that if the Widow is not required to pay the cost of maintenance and repairs arising from normal wear and tear, then no one is legally obligated to make such repairs. The Children’s position is that the home can simply be allowed to deteriorate, presumably until such time as the Widow’s right to possession ends and the right of possession vests in the Children no matter the condition of the home.
“The Court disagrees. The Children’s odd contention that ‘no one’ is obligated to make such repairs could and would obviously frustrate one of the testator’s primary intentions in Item Six, namely that the Widow have the right to use the home. If ‘no one’ is obligated to maintain or make repairs to the home arising from the passage of time and/or normal wear and tear, eventually the home would no longer be ‘habitable.’ The Widow could be divested of her right to the use of the home and this would improperly and prematurely terminate the Widow’s right of possession and would wrongfully accelerate the possessory rights, of the Children. If the Children are not legally bound, the only alternative is to require the Widow to pay the cost of maintenance repairs arising from ordinary wear and tear. Such result would be in direct violation of the express unambiguous provision of Item Six of the Will.
“It further would be unreasonable and inconceivable to assume that the testator would have intended that maintenance and repairs occasioned by normal wear and tear not be made to the home and that the home be allowed to fall to the ground. Since the Will expressly excludes the Widow from the obligation for maintenance and repairs arising from normal wear and tear, the Court concludes that such obligation is of necessity that of the Children, who hold title to the home. To the Court, such is but a part of the allocation of the expenses as between the party in possession and the owners of the home, the Children, analogous to a landlord/tenant relationship.”

The judgment is affirmed.

AFFIRMED.

MADDOX, SHORES, HOUSTON, INGRAM, COOK and BUTTS, JJ., concur.

KENNEDY, J., dissents.

KENNEDY, Justice

(dissenting).

I respectfully dissent. In my view, the majority errs in construing the “exception” of “normal wear and tear excepted” and in its error virtually nullifies the express “rule” under the will that the widow “shall maintain and keep the [house] in good condition and repair.”

It is well settled that a court’s interpretation of a will is guided by the testator’s intent. Gafford v. Kirby, 512 So.2d 1356, 1360 (Ala.1987). The testator’s intent controls the construction of a will, and “[i]t is the Court’s duty to carry out the testator’s intention where that intent can be ascertained.” Galin v. Johnson, 457 So.2d 359, 362 (Ala. 1984).

If the widow is relieved under the “normal wear and tear” exception from any and all maintenance as to matters related to normal wear and tear, which she says includes periodic exterior painting and re-roofing, the requirement that she “shall maintain and keep the [house] in good condition and repair” is a virtual nullity. Given common knowledge of houses and the passage of time, it cannot reasonably be said that the widow can both “maintain and keep” the house in “good condition and repair” and neglect any and all matters related to “normal wear and tear.”

Neither the trial court or the majority addresses this critical point; they do not attempt to reconcile the two phrases in issue, but emphasize and illustrate the meaning of “normal wear and tear excepted.”

A court must endeavor to reconcile potentially conflicting provisions in a will, if a reasonable construction harmonizing the provisions is possible. See Smith v. Smith, 387 So.2d 134, 136 (Ala.1980). As to an analogous rule in the contract law context, this Court has stated: “This is a common sense rule, and is based on the assumption that parties do not intend to say one thing to be immediately contradicted by another.” Manchester Sawmills Co. v. AL. Arundel Co., 197 Ala. 505, 508, 73 So. 24, 26 (1916).

Consistent with the goal of reconciling the language in a will, i.e., giving broad consideration to the testator’s intent, the phrase “normal wear and tear excepted” should not be read as negating the requirement that the widow “shall maintain and keep the [house] in good condition and repair,” if these two phrases are reasonably susceptible of a harmonizing construction.

The only harmonizing construction advanced on appeal is that of the children, and I agree with them that the language in issue is reasonably susceptible of the construction they advance. As the children argue, the phrase “normal wear and tear excepted” (following the deceased’s requirement that the widow “shall maintain and keep the [house] in good condition and repair”), is reasonably construed as permitting usual and insignificant deterioration of the house that will occur through time and use (notwithstanding reasonable routine maintenance and repairs). In short, the widow is required to do what is necessary to keep and maintain the house in what is a “good” condition, and, in determining what is a “good” condition, need not consider changes insignificant to its overall condition that will occur as the house ages; in other words, she must keep the house in a good condition for its age.

Based on the foregoing, I would hold that the trial court erred in entering a judgment for the widow.

On Application for Rehearing

PER CURIAM.

APPLICATION OVERRULED.

MADDOX, SHORES, HOUSTON, INGRAM, COOK and BUTTS, JJ., concur.

KENNEDY, J., dissents.

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. 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.’[] [ (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 it. They only have a remainder interest which will ripen into ownership at some point in the future.
“It is precisely because a remainderman has no right of possession or beneficial ownership that the decisions of the Supreme Court of Alabama, like those of every American jurisdiction, have held that a remainderman has no duties of maintenance, but rather the party who enjoys possession is required to keep property in repair. As Justice Foster, writing for this Court in Dillard v. Gill, 254 Ala. 5, 47 So.[2d] 203 (1950), observed: ‘We find it well established that there is a duty on the part of the life tenant to make such repairs as are reasonably necessary to protect the property against waste. There seems to be no other definite standard set out by the authorities.’”

In short, the Court’s decisions make it clear that the burden of routine maintenance and repair, i.e., the maintenance and repair required to prevent permissive waste, is not imposed on remaindermen. See id.; Linenthal v. Birmingham Trust & Savings Co., 249 Ala. 631, 32 So.2d 368 (1947) (where the Court stated that “the life tenant cannot injure or dispose of the property to the injury of the remainderman”).

If the will imposes no burden on the children for routine maintenance and repairs, and the decisions of the Court make it clear that such a burden is not otherwise imposed on the remaindermen, then I have to conclude that in nonetheless imposing such a burden, the majority has, without discussion (and in my view, wrongly), abandoned the existing law of this State and has thereby thrust the State into a minority position. 
      
      . It bears emphasis that the express language of the will does not place any duty on the children to maintain the house occupied by the widow. Rather the express language of the will places such a duty only on the widow.
      
     
      
      . The present condition of the house, as suggested by the majority, is the result of a lack of routine maintenance, evidently since 1979, rather than the result of normal changes that one could expect in an older home notwithstanding routine maintenance.
     
      
      . As the United States Court of Appeals for the Eleventh Circuit stated in Capitol Funds, Inc. v. Arlen Realty, Inc., 755 F.2d 1544, 1549 (11th Cir.1985):
      "The most reasonable and logical interpretation of the exception for obsolescence and ordinary wear and tear is simply that the tenant is not required to keep the premises in like-new or nearly new condition, but rather is required merely to keep it serviceable and in good repair.”
     
      
      . It is clear that the trial court (and the majority, in quoting the trial court's "rationale” as its own), concluded that the children had the burden of routine maintenance and repairs, " ‘analogous to a landlord/tenant relationship.’ "
     