#### Price *against*Price’s Heirs.

[Mr. Crittenden for appellant: Mr. M. C. Johnson- and Mr. Woolley for appellees.]

From the Circuit Court eor Fayette County.

*Agreed case.*

*April*4.

The Legislature, created a corporation to consist of those who. should thereafter, subscribe for shares of $100. each, in the. capital stock of $1,^ 000,000 — the cor poration to have perpetual succession; with power to.gurcbaseland, on which to con struct a rail road and erect build ings for its use, with power also, to transport persons and comino dities on tharoad, and to own machines &c.forthat purpose; to take tolls, divide the profits, &c. *held*that the interest of each share hoi der is a franchise, & the shares *real*estate, of the class called incorporeal hereditaments — and of which a widow may be endowed. The fact that, some instalments on the shares were paid for by the personal representatives *'*of the subscriber, after his death, makes no difference in the nature of the estate.

Judge Ewing

delivered the Opinion.of the Court.

This is an agreed case, and the only question presented for the determination of this Court, is whether stock in. the Lexington and Ohio rail road company, is real or personal estate.

The Legislature,'by an act approved January 27th, 1830 (Session Acts of 1829, 126,) incorporated a company to'construct a rail road from Lexington to the Ohio river, giving to them perpetual succession, and the power to raise funds.by subscription, in shares; to purchase ground for a rail way, and for the erection of suitable buildings, for the safe keeping of articles received, for transportation, and for shops" for the accommodation of the company, and cars, vehicles, &c. And to charge toll, and make a dividend of the-profits, among the shareholders, according to the amount of stock held by each.

The right conferred on each.! shareholder, is unquestionably an incorporeal hereditanrent. It is a. right of perpetual duration, and though it springs out of the use of personalty, as well as land and houses, this matters not. It is a franchise which has ever been classed in that class of real estate denominated an incorporeal hereditament. ' An annuity, though only chargeable upon the person of the grantor, is an incorporeal hereditament, and though the owner’s security is merely personal, yet he may have a real estate in it. 2 *Blk. Com.*40. Much less can it be doubted that a franchise created by act of incorporation, unlimited in duration, and springing out of the combined use of lands and personalty, should be denominated and classed as real estate. 2 *Blk. Com.*20-1-2, 37-8;- *Co. Lit.*19-20; *Com. Digest,*title-Franchise.

Nor can it make any difference, th'at a portion of the *108amount due upon the stock has been paid since the death of the ancestor. If lands be purchased, though a part or the whole consideration be paid after the death of the vendee, this cannot change the nature of the *estate*in the land, but it is still real estate, and must descend as such.

So the payment of the consideration, upon the stock, cannot change its character. It will still descend as realty, and is subject to dower as such.

It is, therefore, the opinion of the Court that the decree of the Circuit Court upon this point, be affirmed with costs.