Open main menu

Page:Harvard Law Review Volume 2.djvu/168

This page needs to be proofread.



Strictly speaking, cestuis que trusty being in equity co-owners of the corporate property.^

There are several classes of cases illustrating this difference in theory. Thus, if the shareholders have in equity the same interest which the corporation has at law, a share will be real estate or personalty, according as the corporate property is real or personal. If it were personalty, as was usually the case, no question would arise, for then on any view the shares would be personalty likewise. Let it be supposed, however, that the corporate property was real estate ; then, according to the view formerly prevailing, the shares must be devised and transferred according to the statutes regulat- ing the disposition of real estate ; they would be subject to the land tax ; and, in short, would have to be dealt with in the same way as other equitable interests in land. Exceptions to this gen- eral rule would have to be made if special modes of transfer were prescribed by a statute of incorporation. This was generally the case ; provision was ordinarily made that the title to shares should pass by transfer on the books, and also that they should be per- sonal property.

The question arose several times in regard to the shares of the New River Water Company. The title to the real estate controlled by the company seems to have been in the individual shareholders, the company (which was incorporated) having only the manage- ment of the business.^ It was uniformly held that the shares were real estate, that they must be conveyed as such inter vivosy that a will devising them must be witnessed in the same manner as a will devising other real estate,^ and that the heir and not the per- sonal representative of a deceased owner was entitled to shares not devised.

The cases which were thus decided were afterwards distinguished* on the ground that the title to a large part of the real estate was in the corporators, and as to all of it the company had no power to convert it into any other sort of property, but had simply the power of managing it. The distinction, however, amounts to notb-

1 "The legal interest of all the stock is in the company, who are trustees for the several members." Per Lord MacclesBeld, Child v, Hudson's Bay Co., 2 P. Wms. 207. ^ As to the nature of the company see Bligh v. Brent, ^ Y. & C. 268.

• Dry butter v, Bartholomew, 2 P. Wms. 127; Townsend v. Ash, 3 Atk. 336; Stafford v, Buckley, 2 Ve8.Sr. 171, 182; Swaine v. Falconer, Show. P. C. 207; Sandys «/. Sibthorpe, 2 Dick. 545.

♦ Bligh V, Brent, 2 Y. & C. 268, 296.