
    Welles against Cowles.
    THIS was an action of assumpsit, to recover the dividends, for a certain period, on twenty-live shares of the capital stock of the Talcott Mountain Turnpike Company.
    
    The cause was tried at Hartford, September term, 1817, befora Edmond, Smith and Baldwin, Js.
    The Talcott Mountain Turnpike Company was incorporated, by the legislature, in May, 1798. That part of the act, which constituted the petitioners a corporation, was in these words : “ Resolved by this Assembly, that Georg» Humphrey» and his associates, together with such persons as shall hereafter associate, with their successors, heirs and assigns, be, and they are hereby constituted a corporation, by the name of the Talcott Mountain Turnpike Company, for establish! rig and keeping in repair a turnpike road,” &c. The act then authorized the company, when they should have made the road, and put it in complete repair, to erect two gates, and collect toll of travellers, according to a tariff prescribed. In a subsequent part of the act, was this provision : “ And whensoever, and as soon as, the aforesaid toll shall reimburse to the said company, their successors, heirs and assigns, the sums by them advanced for making said road, and keeping the same in repair, together with an interest of twelve per cent, per annum, the said road shall be, and remain, discharged, free from said toll,”
    
      shares oft-turnpike arereal⅞-tute.not-fog the right tontshmit-ed, by their ⅞⅛⅛⅛⅜'* meat of expenses and interest; and are not subject to testamentary disposition, by a testator not qual - ified to devise real estate.
    
      
      Hartford,
    
    June, 1818.
    
      Sarah Morton, before and at the time of her decease, on the lTth of January, 1815, was the owner of tw enty-five shares of the stock of this company. She left two sisters, Fanny Welles, wife of the plaintiff, and Julia Morton, who were her only heirs at law'. On the 13th of January, 1815, Sarah Morton, being over the age of seventeen years, but under the age of twenty-one, made and published her last will and testament, by which she gave sundry legacies to her sisters, and other persons, and then made her cousin Thomas Mather, her residuary legatee, as follows : “ Item, I give, devise and bequeath to my cousin, Thomas Mather, all my personal estate, and all my other estate, which I may possess, that I can by will dispose of, that may be left, after paying my debts, and the aforementioned legacies.” She appointed Horace Cowles, the defendant, and William Mather, her executors, who accepted the trust. On the 9th of February 1816, Julia Morton died, leaving Mrs. Welles her sole heir. The defendant, in his capacity of executor, received the dividends on said twenty-five shares, which accrued after Sarah Morton’s death, as part of her personal property. The only question was, whether these shares, and the dividends thereon, were personal property, and could by law be disposed of, by the testatrix, in her will. The court instructed the jury, that they were not personal, but real estate, which the testatrix was incompetent to dispose of, by will; and directed them to return a verdict for the plaintiff. This being done, (he defendant moved for a new trial, on the ground of a misdirection ; and the court reserved the motion.
    'Hie case was argued, at the last Nor ember tent! of this Court, by Vitkin and Edwards, in support of the me,lion, and by T. S. lVilliams, and Cowls, contra. After considerable discussion among the .Judges, some of whom bad not formed a decided opinion, they continued it to advise.
    
    In support, of the motion, it was contended,!. That this' property wanted that yerman ene if, which is essential to constitute it real estate. By the express terms of the grant, the toll is to cease as soon as tlie expenses of the company are reimbursed, with twelve per cent, interest. This reimbursement ¡nay be accomplished in a few years j and if facts of general notoriety, with regard to the. amount of travel on this road, can he taken notice of, if undoubtedly will be. This is clearly not a “ perpetual iniieriiance.’’
    2. That if does not partake of the realty. The state itself had no interest in the soil, and could not grant any; nor does the act of incorporation purport to grant any. The company, of course, acquired none. It is an observation, which lias the force of a maxim, that the nature of the thing may be properly illustrated from the remedy the law gives for it. Bur it is clear, that this company can maintain no real action in respect of the road. So far as regards the nature of the estate, this highway is like every other highway. In ordinary cases, the inhabitants of the district through which a road runs, arc compelled by law1 to make it, and keep it in repair : the fee of she land remains in the original proprietors ; and the right of passage is unrestricted. Here, the legislature have contracted with certain individuals, to make the road and keep it in repair, and have constituted them a body politic for that purpose; the fee of the land remains, precisely as in other cases, in the original proprietors ; and the right of passage is subject to a small assessment, the avails of which go to reimburse the makers of the road. It can obviously make no difference in the nature of the tiling, whether a surveyor of highways builds or repairs a road, and is reimbursed from the proceeds of a tax upon the inhabitants of the district, or whether it is done, by an authorized association of individuals, who are reimbursed from the proceeds of an assessment upon travellers. Tim right in both cases is the same, or strictly analogous, ⅛, That of compelling contributions from the persons legally liable, for the purpose of reimbursing expenses. The right in question would seem to savour less of the realty, than an annuity in fee, granted by the king, out of the Barbadoes duties, which were paid in respect of the tenure and produce of land | and yet such an annuity was held to be a personal inheritance, not within the statute of Frauds. Earl of Stafford v. Bulklcy, 2 Ves. 170.178. It has also been held, that an annuity charged upon the post-office, until a certain sum to be laid out in land should be raised, was a mere personal annuity. Lady Holdernesse v. Marquis of Carmarthen at. 1 Bro. Ch. Ca. 377.
    3. Admitting that the estate owned by the company, in its corporate capacity, was real estate ; yet the interest of Sarah Norton,, an individual stockholder, was only a right to receive a certain proportion of such dividends as should be declared» This right had no concern with the realty j her only claim was upon the company ; and that was strictly personal.
    It was insisted, contra, that the turnpike stock in question-Was an incorporeal hereditament and real estate.
    1. It is comprised within the established definitions of real estate. 44 Things real/’ as contra-distinguished from things personal, are said, by Blackstone, to be 44 permanent, fixed and immoveable and 44 things personal,” on the other hand, to be 44 goods, money, and all other moveables, which may attend the owner's person.” 2 Black. Comm. 16. The same writer defines 44 an incorporeal hereditament” to he 44 a right issuing out of a thing corporate, or concerning, or annexed to, or exerciseabie within, the same.” 2 Black. Comm. 20. Blackstone’s authority is Co. Litt. 10. b. 20. a, which fully supports him. Cruise says, 44 real property consists of land,” (in the most comprehensive sense of that term,) 44 and of all rights and profits arising from, or annexed to, land, which are of a permanent and immovable nature.” 1 Cruise’s Big. 1, 2. Lord Coke makes all incorporeal her-editaments savour of the realty, which concern land, or certain places — d. e. are exercisable within assignable local limits. Co. Litt. 20. 6. Now the rigid of taking tolls on this road, which is the property in question, is a right issu~ «ig out of land; it concerns land; it is exercisable within certain local limits ; and it is, in the sense required, permanent. The law considers an estate as permanent, which may endure forever, though it may be defeated, pursuant to a provision in the grant, within a short time. The estate of a mortgagee is liable to be defeated, even at law, by payment of the money, when it becomes due ; -but will it be contended, that this estate wants the permanency requisite to make it real estate ?
    2. This property is real estate, according to the decisions in analogous cases. In Buckeridge v. Ingram, 2 Ves. jun. 652. it was decided, that shares in the navigation of the river Avon, were real estate, which could not pass by will, without three witnesses ; and that the widow of the testator was entitled to dower in them. The nature of that property, as appears from the master's report, is not distinguishable from our turnpike stock. It has also been decided, that dVew-River stock, is real estate, on a question, whether the wife can be barred of her interest in it, without a fine. Drybutter v. Bartholomew, 2 P. Wins. 127. In The King v. The inhabitants of Chipping-J^orton, 5 East 239. 242. Lord Ellen-borough expressed an opinio», that the tolls of a market for the sale of cattle, constituted an incorporeal tenement, according to Co. Liti. 19.$. 2Q, a. and Webb’s case, 8 Itep. 46. ⅛ In Roberts on Frauds, p. 126. it is said, that the statute of Frauds, is confined to real estate ; and in the same book, p. 127. it is said, that it extends to shares in the New-River, and to all tolls. The grant to the New-River Company, authorizes them to dig a trench, and maintain it, through the grounds of individuals, on paying them the damage, for the purpose of bringing water into the city of London, but expressly provides, that the inheritance of the trench shall remain in the original owners. 2 Cay’s Stat. ,551. [3 Jac. 1. c. 18. s. 1.] This makes the interest of the stockholders arid that of the owners of the land, the same as the corresponding persons have, in the stock and soil of our turnpike roads.
    3. These shares are made real estate, by the act of incorporation. A distinguishing feature of real estate, is, that it goes to heirs, arid not to executors. The legislature have expressly made this stock descendible to heirs. rJ’licy have i hereby treated it as real estate, ami manifested tiieir intention that it should be such,
    4. The general practice of our sister stales, and the frequent ¡maniré of this stale, of expressly providing, in their grants, to turnpike and toll-bridge companies,- that the stork shall be considered personal, estate, affords an inference, that without such provision, it would not be personal estate.
    In reply, it was remarked, that the word “ heirs” can have no application to a corporation ; it can mean nothing more than “ successors j” and is mere surplusage.
    
      
       For instances of such provisions in grants made by the legislature of Connecticut, see the acts of incorporation of The Chatham and Marlborough Turnpike Co. State Rec. Oct, 1809* p. 43. The East-Haddam and Colchester Turnpike Co. Id. Oct. 1809. p. 47. The Durham and East-Guilford Turnpike Co. Id. May 1811. p. 101. The Southington and Water bury Turnpike Co. Id. Oct. 1812. p. 38. The Farmington and Havwinton Turnpike Co. Id. Oct. 1812. p. 40. The Middletown, Durham and Mew-Haven Turnpike Go. Id. Oct. 1813. p. 33. The Middletown and Meriden Turnpike Co. Id. Oct, 1809. p. 35. The Tittle Falls Toll Fridge Co. Id. May 1803- p. 60. Huwletfs Bridge Co. Id. May 1803. p. 45. WarneFs Toll Bridge Co. Id. May 1803. p. 62. The New-Milford Toll Bridge Co. Id. May 1803. p. 64. The Great Falls Bridge Co. Id. May 180?. p. 97. &c.
    
   Swift, Ch. J.

Though the public do not own the right of soil in highways, yet they have the right? to pass and re-pass, and to do every act necessary to make and repair the roads. This right, though of an incorporeal kind, is real property. When the legislature incorporated the turnpike company in question, they authorised and empowered them to make and maintain the road, to erect gates thereon, and collect a certain toll, till the expense of making and repairing the road should be reimbursed to the stockholders, with twelve per cent, interest. This is a right, issuing out of real property, annexed to, and exerciseable within it; and comes within the description of an incorporeal hereditament of a real nature, on the same principle as a share in the New lliver, in canal navigations, and tolls of fairs and markets. Drybutter v. Bartholomew, 2 P. Wms. 127. Habergham v. Vincent, 2 Ves. jun. 232. The King v. The inhabitants of Chipping-Norton, 5 East 239. This is not a mere right of action in favour of the company to collect a toll from individuals passing the road ; but they can, by erecting the gates, compel passengers to pay for the privilege of passing the road. This is a power annexed to, and exercisable upon, the turnpike road ; and the toll is paid for passing the road, and, consequently, issues out of it.

It has been urged, that the individual stockholders have only a claim on the company, and not upon the realty, and ibis must be of a personal nature. But the stockholders, as members of the company, are owners of the turnpike road ; and it is in virtue of this interest, that they have their claims for the dividends, or their respective shares of the toll. It is not a mere claim on the 'corporation.

It is further insisted, that this right to collect the toll is of a limited duration, tbat is, till tine expenses are reimbursed : that this must happen at some period ; and the remoteness of it can make no difference; .consequently, this must be a personal right. It is true, when the estate must determine at a certain time, and may determine sooner, it is a chattel interest. But a freehold maybe created upon a condition ; and where the condition or limitation is uncertain, depending on a contingency, this uncertainly preserves the freehold : for if the condition remain unbroken, or is not performed, it may last forever, or, at least, for the life of the ow'ncr. Here, the grant to the turnpike company is conditional, or more properly speaking, limited ; depending on a contingency, the reimbursement of the expenses of the road. If this should never take place, and there is a possibility it may not, then the estate will endure forever; but the mere possibility that the event may happen, on which the estate will be defeated, does not convert it into a chattel personal. 2 Black. Comm. 156.

Hosmbk, J.

The only question necessary to be decided in Ibis case, is, whether turnpike shares are personal estate ; If they are not, the testatrix, by reason of her tender age, was not legally capable to dispose of them by her last will. 1 Stat. Conn, tit. 8. s. 1.

To simplify the enquiry, it will be useful to remove out of Ihc way some considerations which embarrass the mind in its progress towards a legal result.

Estates heh~ by statute merchant, statute staple anti elegit~ are merely chattel interests. They vest in the executors of the deccasc~1, ~ot by reason ~f there general uathrc. bn~ because « being a security and remedy provided for the present debts of the deceased, to which debts the executor is entitled, the law lias therefore thus directed their succession ; as judging it reasonable, from a principle of natural equity, that the security and remedy should fee vested in those to whom the debts, if recovered, would belong.” 2 Black. Comm, 162. From this source, therefore, no argument applicable to the present case can be deduced. Neither can any fee derived from the fact, that turnpike shares in England are deemed chattel interests. They are made such by statute, which limits them to a certain number of years. In the state of Mew-Tork, the laws authorising turnpikes, expressly constitute the shares personal estate. Under this head, I will only add, that the mode of leving executions, on this species of property, furnishes no aid towards a decision of the principal question. It is expressly prescribed by statute.

Turnpike shares are not embraced within any description of personal property, with which I am acquainted. Chattels personal are, properly speaking, things moveable ; which may be annexed to, or attendant on, the person of the owner, and carried about with him from one part of the world to «mother.” 2 Black. Comm. 387. It is equally clear, that turnpike shares are not chattels real. These have the immobility of land, but want a sufficient legal indeterminate duration ; and this want it is that constitutes them chattels. 2 Black. Comm. 386. The utmost period for which they can last, is fixed and determinate. But, the estate in a turnpike share is indeterminate, and may last forever. It falls within the reason assigned for considering estates durante viduitate, or for any like uncertain time, estates for life, since by possibility they may last so long. Co. Lit. 42. 3 Rep. 42. A grant of land, at common law> to a man and the heirs of his body, was called a conditional fee. It might endure forever; though on failure of the heirs specified in the grant, the land would revert to the donor. Plowd. 241. If then, turnpike shares are neither chattels real nor personal, what remains but that they are of that species of real estate denominated tenements ? “ This word includes not only all corporate inheritances, which are or may be holden, but also all inheritances issuing out of any of those inheritances, or concerning, or annexed to, or exercisable within the same, though they He not in tenure.” Co. Lilt. 19, 20. « Therefore,” says Coke, “ they may be entailed. Rents, estovers, or other profits whatsoever, granted out of land ; or uses, offices, dignities, which concern lands or certain places, may be entailed within the said statute \ because all these savour of the realty. jBut if the grant be of an inheritance merely personal, or to be exercised about chattels, and is not issuing out of land, nor concerning any land, or some certain place, such inheritances cannot be entailed, because they savour nothing of the realty.” The expression cited, “ though they lie not in tenure,” merits attention, to put down a common error, that nothing can be real estate which is not visible and palpable. A single instance will sufficiently illustrate this subject. An advowson is an incorporeal hereditament, though it is neither the object of sight nor touch. It is the right of presentation to an ecclesiastical living. When the nominee enters, and receives bodily possession of the lands and tenements of a church, there is a visible corporeal fruit j but the estate which the patron has, is the invisible right of presentation only. The same observation is applicable to other incorporeal heredita-ments, and among them to an annuity, « in which a man may have a real estate.” 2 Black. Comm. 40. In short, Wooddeson, vol. 2. 57. correctly defines incorporeal hereditaments <f to be such rights and estates, descending, or capable of descending, in fee simple, or fee tail, of which the essence is merely ideal, and not the object of our outward senses.”

A wife, at common law, is dowable only of lands or tenements, of which her husband was seised at some time during the coverture. Co. Lilt. 30. b. Yet she may be endowed of the third part of the profits of stallage ; or of the profits of a fare ; or of the profits of the office of the marshalsea ; or of the profits of keeping a park j or of the profit of a dove-house ; or of a rent in fee. All these instances, and others of the same nature, which might be enumerated, decisively show*, that tenements, or real estate, exist, not only in the person w ho has actual seisin of the land, but in others, who have a profit or rent derivable from it, or from an office concerning it.

I think it undoubted, that a turnpike share is that species of real estate denominated a tenement. Over the soil, the owner of the share has no other interest, than a right to render It passable, and to receive a compensation. Hut « rents or any other profits whatsoever} which concern lands, or are peculiarly and certainly local, may be entailed as tenements.. because all these, says Sir Edward Coke, savour of the re~ ally.'’ 2 Wooddeson 71. In Drybutter v. Bartholomew, 2 jp. Wins. 127. it was decided, that the husband being seised of a share of the JVew-Tiiver water, the wife could not be barred without a line. Wooddeson, vol. 2. 50. referring to this case, makes the following observations : “ Thus, also, the several shares or interests in the Mew-River water, are clearly hereditaments, in which a fee simple may be acquired j and, I apprehend, they are to be ranked with those of the incorporeal kind. For they do not seem to give an absolute or exclusive right or ownership in the water, or in the soil covered with water, to any proprietor, individually, or to all tlic proprietors, jointly ; but only to a real or freehold interest in the rents and profits resulting from a proprietary share in the undertaking, as regulated by the legislature.”

The master of the Rolls, in Buckeridge v. Ingram, 2 Ves. jun. 652. decided, that the shares in the river Avon navigation, a case essentially similar to the one under discussion, were real estate. That river was rendered navigable by persons authorized by act of parliament. The proprietors had no interest whatever in the soil, except what arose from the right to enter on land, and by digging or other means, to accomplish the general object of the law. The value of the shares arose from the rates and duties collected. After having referred to the doctrine of Lord Coke, before recited, the master of the Rolls observed, that the act gave a right in and over the soil, and certain real rights arising in and out of the soil. « I have no difficulty” (says he,) “ in saying, that wherever a perpetual inheritance is granted, which arises out of lands, or is in any degree connected with, or, as it is emphatically expressed by Lord Coke, exerciseable within it, it is that sort of property the law denominates real.” F. 663,4.

In the case of the Mng v. The inhabitants of Chipping-Norton, 5 East, 239. it is said by Lord Ellenborough, founding himself upon the authority of Lord Coke, in his comment upon the statute of Westminster 2d. or on Webb’s case, 8 Rep. 46. b. that the receiving the tolls of a fair or market was the taking of a tenement, within the law concerning the settlement of paupers. By the statute of Frauds and Perjuries, « no action shall be brought to charge any person upon any contract or sale of lands, tenements or hereditaments,” &c. unless the contract is in writing. But all freehold rents, of whatever denomination, are within the operation of this clause, as coming under the word “ tenements.” Habergram v. Vincent, 2 Ves. jun. 232. Roberts on the statute of Frauds, 126, 127.

Without pursuing the subject further, I have no hesitation in declaring, that turnpike shares, on principles of common law, cannot be classed with personal estate; but, that they are real estate, and the testatrix, Sarah Norton, was incapable of devising them.

The other Judges were of the same opinion.

New trial not to be granted. 
      
      «) During the pendency of this cause in the supreme court of errors, the General Assembly passed an act, which, after stating in the preamble, that doubts had been entertained, whether shares in banks, turnpike companies, and other incorporated companies, should be disposed of as personal or real estate, provided, that all such shares, thereafter, should be considered, and might be disposed of, as personal estate,, 2 Conn. Stat. May Session, 1818, c. 10.
     