Whitlow v. Whitlow
| Citation | 267 S.W.2d 739 |
| Parties | WHITLOW v. WHITLOW. |
| Decision Date | 26 March 1954 |
| Court | United States State Supreme Court — District of Kentucky |
Homer Parrent, Jr., J. Allen Sherman, Louisville, for appellant.
Hensley & Logan, Joseph P. Pike, Louisville, for appellee.
All parties to this action have the same surname and to save time and space each will be referred to by his or her given name.
The question to be decided is whether Lillie, the divorced wife of Roger, or Elizabeth, his widow and administratrix, is the owner of a lease Roger held on a parking lot in Louisville at the time of his death. This lease was said to be earning a profit of $300 per month and had about two years to run at the time of Roger's death. The chancellor's decision was in favor of Elizabeth, and Lillie appeals.
Roger and Lillie were divorced on January 22, 1946, the judgment reciting:
'Whereas the parties to the above styled action, which is now pending in the Jefferson Circuit Court, desire to make a settlement of their property rights, it is hereby agreed that the defendant, Roger Whitlow, is to pay the plaintiff, Lillie Whitlow, the sum of $12.50 per week alimony, and that this is in full of all claims for alimony or maintenance and property rights, except that in event the said Roger Whitlow, should give up his lease on parking lot on Central Street near Walnut Street, he is to give her the first option on same, or if he should die while said lease is in force, she may, with the consent of the owner, take over the remainder of said lease.'
At the time of the divorce Roger held a lease on the parking lot which expired June 1, 1949. On August 4, 1948, prior to the expiration of the lease, Roger obtained a written lease on the lot from its owner which was to run from June 1, 1949, to June 1, 1954. He married Elizabeth on December 20, 1949, and at his death on June 11, 1952, Elizabeth took possession of the lease and began operating the parking lot. On the motion of Lillie the court revived the divorce judgment on February 10, 1953, and issued a rule against Elizabeth to show cause why she should not turn the lease over to Lillie under the provisions of the divorce judgment. Upon hearing the rule the chancellor construed the divorce judgment as relating only to the lease which was in existence at the time of the divorce was held it did not cover the lease which Roger acquired on August 4, 1948.
Elizabeth insists the affidavit through which Lillie set up her claim to this lease under the divorce judgment amounted to a plea in ejectment and could not be tried in a court of equity. With this we cannot agree. The issue to be determined was whether the divorce judgment, as properly construed, covered the lease in existence at the time of Roger's death, or whether that judgment only covered...
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