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England at the present day,25 and they have been quite fre quently so regarded in this country.26

The question, then, naturally arises, why rights of this character, which are not land nor rights therein, should be associated with land in the quality of heritability involved in the word "hereditament," or should be regarded as things real, and not as things personal. The reason for this assimilation of franchises to land seems to lie in the fact that whatever may be the nature of franchises at the present day, in former times in England they were always exercisable within the limits of lands held by their owners, or at least were exercisable at a particular place, or within certain territorial limits, and accordingly, with other things of an incorporeal nature, were regarded as in the nature of land.27

The franchises which were of the greatest importance in mediaeval times possessed this element of locality to a decided extent, being generally rights granted to the great feudal landholders to exercise judicial or governmental pow ers within the limits of the land held by them of the crown, or similar rights granted to the members of a particular borough community; or quite frequently they involved

28

25 Reg. v. Cambrian Ry. Co., L. R. 6 Q. B. 427.

26 3 Kent, Comm. 457; Alexandria Canal, etc., Co. v. District of Columbia, 5 Mackey (D. C.) 376; Gibbs v. Drew, 16 Fla. 147; Tuckahoe Canal Co. v. Tuckahoe & J. R. R. Co., 11 Leigh (Va.) 42, 76; Sellers v. Union Lumbering Co., 39 Wis. 527; Phalen v. Commonwealth, 1 Rob. (Va.) 713; and see post, note 30.

27 "The realm of mediaeval law is rich with incorporeal things. Any permanent right which is of a transferable nature, at all events if it has what we may call a 'territorial ambit,' is thought of as a thing that is very like a piece of land." 2 Pollock & Maitland, Hist. Eng. Law, 124 ("Incorporeal Things," book 2, c. 4, § 6). See, also, Co. Litt. 18a, as to rights which concern or "savor of" the realty.

28 See 1 Pollock & Maitland, Hist. Eng. Law, 574, 642.

the right of hunting in a particular district.29

The same

local quality attaches to franchises to maintain a ferry at a particular point, and charge tolls for the use thereof, which have been in this country, as well as in England, regarded as real hereditaments;30 and the same may be said of a franchise to maintain a toll bridge.31

The most usual franchise at the present time is the right to exist as or form a corporation; a character of right which is sometimes spoken of as vested in the corporation itself, and sometimes as vested in the individuals composing the corporation.32 Such franchises have been stated to be hereditaments, but there seems to be some impropriety in so classi

33

"See 2 Bl. Comm. 37 et seq.; 3 Cruise, Dig. tit. 27, §§ 1-31. "The principal franchises are (1) liberties to hold courts; (2) grants of Jura Regalia and Counties Palatine; (3) grants of forest courts; (4) liberty to make a park; (5) the right of freewarren; (6) to have the goods of felons etc.; (7) to have waifs and strays; (8) to hold a fair or market; (9) to keep a ferry." Elphinstone, Interpretation of Deeds, 581.

30 D'undy v. Chambers, 23 Ill. 369; Gunterman v. People, 138 Ill. 518; Bowman v. Wathen, 2 McLean, 376, Fed. Cas. No. 1,740; Reg. v. Cambrian Ry. Co., L. R. 6 Q. B. 422.

In this country, the statute quite frequently provides that a ferry franchise shall be granted only to a riparian proprietor, and in such cases it is an incorporeal hereditament, which will descend with or pass with a devise or deed of the land of such proprietor (Haynes v. Wells, 26 Ark. 464; Trustees of Maysville v. Boon, 2 J. J. Marsh. [Ky.] 224; Lewis v. Town of Gainesville, 7 Ala. 85), unless the riparian proprietor grants this right of maintaining the ferry to another, which it has been decided he may do (Bowman v. Wathen, 2 McLean, 376, Fed. Cas. No. 1,740. But see Haynes v. Wells, 26 Ark. 464).

81 Enfield Toll Bridge Co. v. Hartford & New Haven R. Co., 17 Conn. 40, 60.

32 See 2 Morawetz, Priv. Corp. § 923 et seq.; Fietsan v. Hay, 122 III. 293; Memphis & Little Rock R. Co. v. Railroad Commissioners, 112 U. S. 609; Pierce v. Emery, 32 N. H. 507; Evans v. Philadelphia Club, 50 Pa. St. 107.

as 2 Bl. Comm. 37; Price v. Price's Heirs, 6 Dana (Ky.) 107;

fying them, since, as remarked by Chancellor Kent, "they have no inheritable quality, inasmuch as a corporation, in cases where there is no express limitation to its continuance by charter, is supposed never to die, but to be clothed with a kind of legal immortality." 34 Furthermore, it may be said of franchises of this character, as of others, that, when granted only for a limited number of years, as is the custom in this country at the present day, they cannot be regarded as hereditaments, or "real" things in any way, they lacking the element of perpetuity necessary for this pur

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The right of one person to receive a yearly stipend from another person, if not secured by a charge on land, is known as an annuity. Formerly such rights were regarded as in the nature of rents, from which they differ in that the latter are charged on land, and they were treated as things, and not merely rights. Gradually, as it was fully recognized that they did not issue out of land, or, indeed, out of anything, they ceased to be regarded as things, and took their proper legal standing as merely contractual rights of a personal nature.

36

It is well settled in England, however, that if, by the terms of its creation, an annuity is granted to one "and his heirs," it will pass on the grantee's death, like real

Tuckahoe Canal Co. v. Tuckahoe & J. R. R. Co., 11 Leigh (Va.) 42, 76.

34 3 Kent, Comm. 459; and see State v. Georgia Medical Soc., 38 Ga. 608, 626, to the effect that such a franchise is not a hereditament.

35 So it was held that a ferry franchise granted for a definite number of years passed to the personal representatives of the grantee. Lippencott v. Allander, 27 Iowa, 460.

2 Pollock & Maitland, Hist. Eng. Law, 133.

property, to his heirs, and not to his executors, though for other purposes it is regarded as personal property.38

Corporate stock.

In some early cases in England, as well as in this country, it was held that each stockholder in a corporation had an estate in the corporate property, and that consequently, if that property was real, his share was also realty.39 In other and later cases the stockholder has rightly been regarded as having only a right of action for his share of the profits as dividends, and it may now be considered as settled that corporate stock is personal, and not real, property.10

-Summary of conclusions.

Summarizing, then, the results of our inquiry into the nature of incorporeal things real, we find that the only things of this nature recognized in this country are rights as to the use or profits of another's land, and franchises, or certain classes of franchises, and consequently these, together with land and things annexed thereto (corporeal things real), are alone the subjects of real property.

87 Co. Litt. 2a; Stafford v. Buckley, 2 Ves. Sr. 170; Turner v. Turner, Amb. 776. An annuity so limited is known as a "personal hereditament." See Challis, Real Prop. 40; 2 Am. Law Mag. 68.

If not limited to the heirs, it passes to the executor, as other personal property does. Taylor v. Martindale, 12 Sim. 158; Parsons v. Parsons, L. R. 8 Eq. 260.

28 Aubin v. Daly, 4 Barn. & Ald. 59, 1 Gray's Cas. 2; Radburn v. Jervis, 3 Beav. 450.

39 Buckeridge v. Ingram, 2 Ves. Jr. 652; Price v. Price's Heirs, 6 Dana, 107; Welles v. Cowles, 2 Conn. 567.

40 Johns v. Johns, 1 Ohio St. 350, Finch's Cas. 14; Russell v. Temple, 3 Dane's Abr. 108; Saup v. Morgan, 108 Ill. 326; Blight v. Brent, 2 Younge & C. 268, 294; Bradley v. Holdsworth, 3 Mees. & W. 422; Lindley, Companies (5th Ed.) 451; Cook, Corporations (4th Ed.) 12.

6. Distinctive characteristics of real property.

The primary distinction between personal and real property, is that, on the death of the owner, the former passes to his executor or administrator, to be distributed among the legatees or next of kin after payment of the debts of the deceased, while real property passes immediately to the heirs or devisees, and is subjected to payment of the decedent's debts only in case the personal property is insufficient for the purpose.

41

In case of intestacy, the persons who take the real property as heirs are in England generally different from those who take the personal property as next of kin. In this country, the tendency of the statutes is to make the persons

411 Woerner, Administration, § 276; 11 Am. & Eng. Enc. Law (2d Ed.) 830-845, 984, 1035, 1068, 1085. See Webster v. Parker, 42 Miss. 465, Finch's Cas. 42.

This distinction, however, so far as concerns the nonintervention of the executor or administrator in the case of succession to real property, has been destroyed by a late statute in England (60 & 61 Vict. c. 65; A. D. 1897), and by statutes in a number of states in this country, providing that the real estate shall pass to the executor or administrator, to be administered more or less in the same way as personal property. See 11 Am. & Eng. Enc. Law (2d Ed.) 1037 et seq.

As we have seen, in rare cases personal property consisting of an annuity may go to the heir (see supra, § 5), and in England there are a few other "personal hereditaments." See Challis, Real Prop. 40.

"Heirlooms," in ancient times, were chattels which, by the custom of an estate or a place, descended to the heir. Co. Litt. 18b, 185b. Such heirlooms are now obsolete even in England, and what are now called heirlooms are merely chattels expressly limited, so that they will pass along with the land. 2 Leake, 136, 137. Deer, fish, and the like in a private park, mentioned by Blackstone (2 Comm. 428) as being heirlooms, are not such, but, when they pass to the heir, do so as being ferae naturae. See 2 Leake, 77. Heirlooms by custom have never existed in this coun try.

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