Definition
An incorporeal hereditament is a property right that is inheritable but lacks physical substance — it cannot be seen or touched in the way that land or goods can. It is a right rather than a thing. The right typically arises out of, is annexed to, or is exercisable in connection with land or other corporeal property, but the right itself has no tangible form.
Two layers of meaning appear in the classical sources and remain useful for research:
1. Broad sense: Any heritable property interest — real or personal — that is intangible. On this view, the category encompasses rights such as annuities, offices, and dignities that descend to heirs but exist only in legal contemplation.
2. Strict sense (more common in property law): A right that issues out of, or is exercisable within, a corporeal hereditament (i.e., land). This narrower usage is the one most often encountered in real property analysis. Classic examples include easements, profits à prendre, rents, tithes, advowsons, franchises, and commons.
The defining characteristic is the pairing of inheritability with intangibility. A right that cannot be inherited is not a hereditament at all; a right that is heritable but tangible is a corporeal hereditament. Incorporeal hereditaments occupy the intersection: heritable, intangible, real.
Common Confusion
Incorporeal hereditament vs. intangible personal property: Both categories involve property without physical substance, but incorporeal hereditaments are interests in or arising from real property and are heritable as realty. Intangible personal property — a debt, a copyright, a bank account — is personalty. The distinction matters in older sources, where the rules governing descent, alienation, and conveyancing differed sharply between realty and personalty.
Incorporeal hereditament vs. easement: An easement is one species of incorporeal hereditament, not a synonym. All easements are incorporeal hereditaments; not all incorporeal hereditaments are easements.
Recognized Forms
/SUBTYPES
Classical English law recognized several established categories. The following are the forms most frequently encountered in historical legal sources:
- Easement: A right to use another's land for a specific purpose (a right of way, a right of light).
- Profit à prendre: A right to take something from another's land (timber, fish, game, pasturage).
- Rent: A periodic payment reserved out of land; treated as a real property interest, not mere contract.
- Common: Rights of common pasture, common of piscary, common of turbary, and related rights of use over another's land.
- Advowson: The right to present a clergyman to a vacant ecclesiastical benefice — largely obsolete outside historical research.
- Tithes: A right to a portion of the produce of land; largely abolished in England by the Tithe Commutation Act 1836 and successor legislation.
- Franchise: A royal privilege granted to a private person, exercisable as a property right (e.g., the right to hold a market or a ferry).
- Annuity: A periodic sum charged upon the person of the grantor rather than upon land directly; placement in this category is contested in some authorities.
- Office: A heritable public or private office; recognized as an incorporeal hereditament in older English law, now largely obsolete.
- Dignity: A heritable title or honor; treated as an incorporeal hereditament in the English system of tenure.
Why It Matters in Research
The term is foundational to English real property law and saturates pre-twentieth-century legal sources on both sides of the Atlantic. Several research traps deserve attention.
Transmission into American law was uneven. American jurisdictions received the English common law of real property but shed or modified many of the specific subtypes. Advowsons, tithes as property rights, and heritable offices disappeared almost entirely. Easements and profits survived robustly. Researchers working with nineteenth-century American treatises or cases will encounter the full classical taxonomy applied to an American context; caution is needed when assuming that a named subtype functions identically in both systems.
The word "hereditament" itself is the entry point to a cluster of related terms — corporeal hereditament, real property, estate — that were used with technical precision in older sources but whose boundaries shifted over time. Black's and Burrill's both rely on Blackstone's Commentaries (2 Bl. Comm.) as the authoritative baseline; researchers should treat Blackstone's taxonomy as the reference architecture when reading nineteenth-century sources that cite him.
Conveyancing formalities differed for incorporeal hereditaments. Under older English law, certain incorporeal hereditaments could not pass by livery of seisin (the physical delivery ceremony for land) and required a grant by deed. This distinction shows up in historical title disputes and conveyancing manuals and can affect how chains of title are reconstructed from archival sources.
Modern statutory simplification in England (Law of Property Act 1925 and related legislation) reorganized property categories in ways that made the classical taxonomy less operationally necessary, though the underlying concepts persist. American jurisdictions accomplished similar rationalization piecemeal through statute and case law. Dictionary entries from before these reforms — including the Black's and Burrill's entries on this shelf — reflect the pre-reform framework.
The "issuing out of" formulation from Blackstone, repeated in both shelf sources, is analytically significant: it captures the derivative character of most incorporeal hereditaments. The right does not exist independently but draws its content and limits from its connection to specific land. Researchers analyzing disputes over the scope or termination of an incorporeal hereditament should trace that connection carefully.
Historical Dictionary Support
Black's and Burrill's converge on the core definition but differ usefully in structure. Black's leads with the broad sense — anything inheritable and intangible — then moves to the Blackstonian "issuing out of" formulation. Burrill's explicitly labels these as a large sense and a stricter sense, which is the more analytically transparent presentation.
Both sources cite Blackstone's Commentaries (2 Bl. Comm.) and, in the case of Burrill's, Stephen's Commentaries (2 Steph. Com.) — the two treatises that shaped how this concept was transmitted to nineteenth-century practitioners. Washburn on Real Property (1 Washb. Real Prop.) appears in Black's as a secondary American authority.
What neither entry addresses directly is the question of how American jurisdictions selectively received these categories. Both entries describe the English taxonomy without flagging that several of its members (advowson, tithes, heritable offices) had no meaningful American application. Researchers relying solely on these entries risk working with a classification system broader than what American law actually absorbed.
Neither entry engages with the statutory reforms that followed their publication. Black's entry, drawn from the Blackstonian framework, treats the category as settled law; it does not anticipate twentieth-century simplification. This is a known limitation of historical legal dictionaries used to research modern property disputes.
Jurisdictional Note
The doctrine of incorporeal hereditaments is rooted in English common law and applies most fully in jurisdictions that received that system. In the United States, the concept survives primarily through its functional subtypes — easements, profits, and covenants running with the land — rather than the overarching classical category. Louisiana, with its civil law heritage, uses different organizing concepts and does not recognize the category by this name.