Legg v. Legg

• Decision Date: 04 February 1904
• Citation: 34 Wash. 132,75 P. 130
• Court: Washington Supreme Court
• Parties: LEGG et al. v. LEGG et al.

75 P. 130

34 Wash. 132

LEGG et al. v. LEGG et al.

Supreme Court of Washington

February 4, 1904

Appeal from Superior Court, Skagit County: Jeremiah Neterer, Judge.

Action by William D. Legg and others against Malena Legg and others. From the judgment, the plaintiffs appeal. Modified.

Million & Houser, for appellants.

Fairchild & Bruce, for respondents.

PER CURIAM.

This was an action for the partition of real estate, commenced in the superior court of Skagit county by appellants William D Legg, Hattie Legg, Cassie Legg, Mary Legg, Lydia Staples Arthur F. Heywood, Edgar A. Heywood, and William M. Lynden against respondents Malena Legg, Milo J. Legg, John Steen and James White. Joseph B. Legg, on the 8th day of March, 1873, made final proof under the premption laws of the United States on the N.W. 1/4 of the S.W. 1/4 of section 22 township 36 N., range 3 E., in Skagit county, Wash. Patent issued for this land to said Legg on February 25, 1874. On the 22d day of September, 1874, in Whatcom county, this state, Joseph B. Legg and respondent Malena Legg intermarried, and from that date continuously till on or about June 1, 1899, occupied this property as their home. After their marriage, on June 20, 1884, Joseph B. Legg acquired title by patent to lot 3, section 21, in township 36 N., range 3 E. W. M., pursuant to the homestead laws of the United States. On or about June 1, 1899, Joseph B. Legg died intestate, while occupying the real estate above described with respondent Malena Legg as a home. There was no issue of this marriage. The intestate, Joseph B. Legg, did not leave surviving him any children, nor did he leave a father or mother. He left as his heirs at law his widow, Malena Legg Lydia Staples, a sister; Cassie, Mary, and Hattie Legg, children of Chas. H. Legg, a deceased brother of the intestate; William M. Lynden, whose name was formerly William M. Legg, an only child of Edwin Legg, a deceased brother of the intestate, whose name was changed by a decree of the probate court in Massachusetts from William M. Legg to William M. Lynden; Arthur F. and Edgar A. Heywood, only children of Eliza F. Legg-Heywood, a deceased sister of intestate; and William B. and Milo J. Legg, only children of William Legg, a deceased brother of intestate. The trial court found that since June 1, 1899, the date of the decease of Joseph B. Legg, respondent Malena Legg has been in the sole and exclusive occupation of the N.W. 1/4 of the S.W. 1/4 of section 22, above described; that the reasonable rental value thereof is $225 per annum; that at the time of the marriage of Joseph B. Legg with respondent Malena Legg this land was of no other or greater value than $500; that since their marriage said husband and wife resided upon, improved, and enhanced the value of said land by their joint efforts to the extent of $900; that the present value thereof is $2,000; that the rental value of such property during the time it was occupied by intestate and Malena Legg in excess of taxes paid was $100 per annum; that Malena Legg at the time of the death of her husband had no property of any kind or character except her community interests in the property above named; that she was not indebted to the community in any sum whatever; that since the decease of Joseph B. Legg, Malena Legg has paid the expenses of the last sickness and funeral of her deceased husband and costs of administration of the estate, amounting to $150, the sum of $111 general taxes, and $43 in labor for road property tax assessed against said N.W. 1/4 of the S.W. 1/4 of section 22; that in 1901, the Seattle & Montana Railroad Company instituted proceedings to condemn a right of way through the real estate first above described, making Malena Legg, William D. Legg, James White, and John Steen defendants therein; that all of said parties except Malena Legg defaulted in such proceedings, who received from said railroad company as compensation for her land by virtue of said proceedings the sum of $940; that in such condemnation proceedings Malena Legg necessarily incurred expenses amounting to $138; that in such proceedings appellants Hattie Legg, Cassie Legg, Mary Legg, Lydia Staples, Arthur F. Heywood, and William M. Lynden were not made parties therein; that after the decease of Joseph B. Legg Malena was duly appointed by the superior court of Skagit county as administratrix of said decedent, Joseph B. Legg; that she thereafter duly qualified in that behalf, and has since been discharged; that at the time of the decease of Joseph B. Legg he left sufficient personal property belonging to the community to have paid the expenses of his last sickness and funeral and the costs of administration. The trial court further found: 'That, so far as the public records show, at the time said condemnation proceedings were pending said Malena Legg was the owner of said property. That an order was made in said proceedings directing said $940 to be paid to said Malena Legg. Said order was made without notice to any of the plaintiffs (appellants).' The court also found that $100 is a reasonable fee to be allowed appellants' attorneys in case the same is a proper allowance as a part of the costs herein; that said property is so situated that a partition thereof cannot be made without great prejudice to the owners. On these findings of fact the trial court made its conclusions of law that respondent Malena Legg is the sole owner of said lot 3 in section 21, as the survivor of the community (Joseph B. And Malena Legg); that the appellants and respondent Milo J. Legg are the owners of an undivided one-half of the N.W. 1/4 of the S.W. 1/4 of section 22, township 36 N., range 3 E., and Malena Legg is the owner of the remaining undivided one-half thereof; that this tract of land was the separate property of deceased, Joseph B. Legg, in his lifetime, which is the only land and property affected by these proceedings; that respondents Steen and White have no interest in the merits of this action; that no attorney fees on either side are chargeable against the common estate; that appellants and respondent Milo J. Legg have no interest nor right to participate in the money paid by the railroad company to Malena Legg; that she is entitled to a charge and prior lien upon this land on account of improvements in the sum of $900, with interest added, aggregating $1,165, with accruing interest thereon at 7 per cent. per annum, and an additional charge of $77, one-half of the total amount paid for taxes and betterments placed on the land, and is to be charged with $337.50, one-half of the rental value of said lands for three years. On October 28, 1902, the superior court...