owner of the stock at the time when the dividend is actually declared, irrespective of the time when it is earned, although it may be made payable at a future date." Thompson on Pri. Corp. § 2172; Price v. Milling Co., 83 Mo. App. 477; Houser v. Richardson, 90 Mo. App. 142; Rose v. Barclay (Pa.) 43 Atl. 385, 45 L. R. A. 319. "Under the foregoing principles, a specific legatee of corporate shares is entitled to all dividends which are declared after the death of the testator." Thompson on Pri. Corp. § 2206; Cook on Corp. $539; Wright v. Warren, 4 De Gex, Rep. 367; Brown v. Collins, 12 Eq. 586; Ibotson v. Elam, 1 Eq. 186; Jaques v. Chamber, 2 Collyer, 435. "A transfer of stock passes, of course, all dividends declared subsequently to the transfer, although the dividend was earned before the transfer was made. * A legatee of shares takes the stock as it was at the time of the testator's death. All dividends declared previous to that event go to the administrator." Cook on Corp. $ 539; Brundage v. Brundage. 60 N. Y. 544, 12 Ct. App. Rep. (Lawyers' Ed.) 334; In re Kernochan et al., 104 N. Y. 618, 11 N. E. 149; Johnson v. Bridgewater Iron Mfg. Co., 14 Gray (Mass.) 274. "An unconditional bequest of the dividends of stock is a bequest of the stock itself. But a bequest of a spedile sum to be paid from stock does not bequeath the stock itself, although amounting to a charge upon it." Cook on Corp. § 305; Wilson v. Maddison, 2 Y. & C. Ch. 372. Indeed, the law is well settled to the effect that he who owns stock at the time dividends are declared owns also the dividends; and it is immaterial when the dividends accrued-whether before or after the death of the testator-as the time the law fixes in adjusting the ownership of dividends is the time when the dividends were declared, and thus severed from the stock of which theretofore they are treated as incident, and if there was in this case a bequest of the bank stock, there would be no difficulty in agreeing with appellant in its contention. But, as we have seen, there is no bequest of the bank stock in the will. The language employed by the testatrix in speaking of the stock is, "which I desire shall be sold to the highest bidder and the proceeds of such sale divided," etc. Here we have no bequest of the stock, but a bequest of the proceeds of the sale made by the exentor; and it is the law, as above stated, that a bequest of a specific sum to be paid from the stock itself does not bequeath the stock itself. It appears from this bequest the stock must remain the property of the estate until sold; hence, the dividends having been declared when the stock was the property of the estate, the executor was right in turning them into the corpus of the estate. But we are told by appellant that it is patent that, as the will provides for the sale of the stock to the highest bidder, and the proceeds of the sale to be paid to appellant and the orphans' home, it is plain the testatrix intended the sum should be made as large as possible for appellant, and therefore the dividends are intended to be included, and that we should heed this intention. There is no rule of construction better settled in the law, nor more firmly imbedded in both reason and justice, than that the intention of the testator is the polar star by which the court should be guided in the construction of wills. Our statute (section 4650, Rev. St. 1899) provides that "all courts and others concerned in the execution of last wills shall have due regard to the directions of the will and true intent and meaning of the testator in all matters brought before them." Our Supreme Court has said: "The first thing to be ascertained is what was meant by the testator in framing his will. and, if his meaning and intention are not violative of any rule of law, they must be carried out and executed." Bredell v. Collier, 40 Mo., loc. cit. 321; Cross v. Hoch, 149 Mo. 336, 50 S. W. 786; Carr v. Dings, 58 Mo. 400; McMillan v. Farrow, 141 Mo. 55, 41 S. W. 890; Allison v. Chaney, 63 Mo. 282; Braint v. Garrison, 150 Mo. 656, 52 S. W. 366; Lewis v. Pitman, 101 Mo. 281, 14 S. W. 52; Garth v. Garth, 139 Mo. 456, 41 S. W. 238; Page on Wills, § 461. Chief Justice Marshall once said: "The intent of the testator is the cardinal rule in the construction of wills, and if that intent can be clearly conceived, and is not contrary to some positive rule of law, it must prevail." Finlay V. King, 3 Pet. 346, 7 L. Ed. 701. A second rule is that the intention must be gathered from the terms of the will itself, unless the inconsistencies and ambiguities in the language used make the intention doubtful, in which case the situation of the testator, the objects of his bounty, and all surrounding circumstances may be considered. In such cases the terms of the will should be viewed from the standpoint of the testator, and his intention ascertained therefrom. Hall v. Stephens, 65 Mo. 677, 27 Am. Rep. 302; Garth v. Garth, 139 Mo. 463, 41 S. W. 238. But this second rule of construction is to be invoked only when inconsistencies or ambiguities in the language used in the will render the intention of the testator doubtful. Then it is proper to look to the surrounding circumstances in order to arrive at the true intent of the testator. Garth v. Garth, 139 Mo. 456, 41 S. W. 238; McMillan v. Farrow, 141 Mo. 55, 41 S. W. 890. It is well settled that the courts have no right to make a new will for the testator, nor have they the right to say what the testator should have meant to do, nor what words the testator meant to use, but the true province of the court is to ascertain from the will what the testator meant by the words he actually used. Page on Wills, § 460; Records v. Fields, 155 Mo. 321, 55 S. W. 1021. And in the absence of manifest intent to the contrary it is the plain duty of the court to give to the words em ployed in the will their plain and usual sense and arrive at a conclusion therefrom. Records v. Fields, 155 Mo. 321, 55 S. W. 1021. Under these rules the courts are always careful to discover the intention of the testator as expressed and enforce that intention. Page on Wills, § 460. Applying these rules, we find that the testatrix knew how to make a specific bequest, if she desired so to do, as in other parts of the will she made several such bequests, among which were a horse, carriage, buggy, houses and lots, etc., to the residuary legatees, and specifically provided that certain named amounts should be paid to other legatees mentioned. We must conclude, then, that she did not intend to make such bequest of the stock in this instance, otherwise she would have done so, as the language employed was not technical, but plain and simple, words which any one competent to make a will must understand. We must give to it its plain and usual sense in interpreting its import. She said, in speaking of the bank stock, "which I desire to be sold to the highest bidder." This of itself is evidence that she did not intend to give the stock to appellant, as the act of selling is the act which severs ownership. We must understand that she intended that her estate should own the stock until it was severed therefrom by the act of sale which was directed. The estate owning the stock at the time dividends were declared also owned the dividends. It then provides "that the proceeds the proceeds of what? Of "such sale," the will answers] shall be divided into two equal parts, which are to be disposed of in the following manner." What is to be disposed of in the following manner? "The proceeds of such sale," again the will answers, and not the stock, or the dividends which were collected therefrom while the stock was still owned by the estate. Indeed, the words employed are so ordinary, such everyday commonplace terms, so plain and so simple, that there is no cause here for the construction of the will under abstruse rules of law. It is a plain, everyday, simple mat ter of interpretation. We gather the manifest intention of the testatrix (by giving to the language employed by her its plain and usual sense) to be that she intended what she said that the stock should be sold, and the proceeds paid to appellant and the or phans' home. As was said by Burgess, J., in McMillan v. Farrow, 141 Mo. 62, 41 S. W. 892: "The provisions of the will in this case are so plain that to resort to extrinsic evidence as to the situation of the parties and the circumstances surrounding the testator at the time of its execution is uunecessary in order to arrive at its true intent and meaning." And the learned judge might have added that resort to matters aliunde in such case would be wholly unauthorized by law. It was the plain direction of the good lady to the executor to sell the bank stock, and pay over the proceeds of such sale to 1. It is the duty of town officials, having jurisdiction over the streets of the town, to observe their condition, and to make an inspection where there is any visible evidence of a defect dangerous to the traveling public; hence it was error, in an action against a town for injuries to one who fell on a defective sidewalk, to instruct that negligence of defendant was not to be presumed from its failure to search for defects in the walk. [Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 1654.] 2. The presumption that city officers do their duty in respect to keeping sidewalks in repair is applicable only where there is no evidence on the subject. 3. It is the duty of a city to discover and repair all defects in a sidewalk which it can discover by the exercise of reasonable diligence, and it is not relieved from liability for injuries to a pedestrian through such defects by showing that they were not of a character to attract the attention of passers-by. [Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 1644.] 4. There is no definite rule as to what length of time would be required to justify the inference of notice to a city of defects in a sidewalk. Each case depends on the facts and circumstances attending it. [Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 1648.] 5. It is the duty of a city to exercise greater care in respect to keeping in repair a sidewalk on a much traveled street than one on a street used but little. [Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 1614.] 6. The negligence of the sidewalk committee of a town in respect to exercising reasonable care to keep the sidewalks of the town in safe condition for public travel is imputable to the town. [Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 1572.] 7. Notice of defects in a town sidewalk to the officers of the town who are charged with the duty of keeping its sidewalks in repair is notice to the town. [Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 1645.] 8. It is not necessary to show actual notice to any of a town's officers charged with keeping in repair its sidewalks, of the defective condition thereof, in order to render it liable for injuries resulting therefrom. It is sufficient to show that the defective condition had existed for such a length of time prior to the alleged accident that such officers might have known of it by the exercise of ordinary care and diligence. [Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 1647, 1018.] 9. In an action against a town for personal injuries to a pedestrian falling on a defective sidewalk, evidence for the purpose of showing that the unsafe condition of the walk had existed for a sufficient length of time to charge defendant with notice thereof is not confined to the very board causing the injury, but the jury may consider the condition of the walk at other places therein within a short distance of the place of the injury. [Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 1649, 1734.] 10. In an action against a town for personal injuries caused by a defective sidewalk it was error to permit witnesses to testify that, in their opinion, the walk was in a reasonably safe condition before plaintiff was injured. [Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, § 2262.] Appeal from Circuit Court, Lewis County; E. R. McKee, Judge. Action by Emma J. Miller against the town of Canton. Judgment for defendant, and plaintiff appeals. Reversed. Earl M. Pirkey, for appellant. Arthur Hilbert and W. M. Hilbert, for respondent. BLAND, P. J. The town of Canton, in Lewis county, was incorporated by special act of the Legislature in 1873. Its duty under its charter, in respect to the public streets and sidewalks of the town, is the same as that of other incorporated towns of its class in this state; that is, it is required to keep its streets and sidewalks in a reasonably safe condition after they have been opened to the public for travel. One of the principal streets in the town is Lewis street, which has been long open to the public for travel, and is much used. It runs north and south. On the north side of Lewis street, in 1902, was a board sidewalk, constructed by laying two stringers parallel with the street as a foundation for the walk. Upon these stringers grub boards were laid and nailed, projecting from two to four inches beyond the stringers. On the north side of the street is the Smoot property, and the evidence is all one way that as early as in January, 1902, the sidewalk in front of this property was out of repair and in bad condition, and that planks here and there were loose, and at places entirely out, and some of the stringers, especially on the south side, rotten. On May 31, 1902, about 9 o'clock p. m., plaintiff, in company with her husband, was walking on this sidewalk in front of the Smoot property, unapprehensive of danger, and with due care, when she was hurt by falling on the sidewalk. She described the accident as follows: "As we ere going along the sidewalk by Mrs. Sinoot's. Mr. Miller, who was upon my left side, stepped upon one of the boards of the walk, and the board thereupon flew up, and as I took the next step my left foot went partly into the hole left by the board, and the board then falling down hit me across the foot and very violently threw me down. 87 S. W.-7 I pitched forward toward the west, the way I was going. I had only my left foot in the hole, and the whole weight of my body went down on that side. My foot was fastened in the hole, and I got it wrenched in falling. Mr. Miller had to pull the board out before he could help me up. I was fastened, so when the board was taken out he helped me out." Continuing, plaintiff testified as follows in respect to her injury: "It didn't only hurt my foot; it hurt my knee and my shin, and gave me a general wrench of the left side; it bruised me up quite a good deal." The witness then related in detail the history of the treatment of her foot by various physicians, and the condition of her foot from the time it was injured up to the time of the trial, the pain she suffered, etc. She testified that the side of her foot is drawn up and does not come flat to the floor naturally as the other foot does, and that she cannot get it down, and that there is a soreness in her foot. Also that the lameness of her foot interferes with her walking and going around, and interferes with her visiting and social duties; that sometimes she is very lame with the foot, and at other times can walk reasonably well for a short distance; that the circulation in that foot is very poor, causing her a good deal of annoyance; also that before the accident her feet were perfectly sound, and she had been a woman of good health all her life. Plaintiff's attending physician corroborated her testimony as to the nature and probable permanency of her injury. Plaintiff's evidence also shows that two of the street committee, appointed from the city board of trustees, had passed over this defective piece of sidewalk on several occasions prior to her injury and while it was out of repair, and that the city's street commissioner had done likewise. These gentlemen, as witnesses for defendant, admitted that they had passed over the defective walk, but said they did not notice that it was out of repair; and they and a number of other witnesses called by defendant were permitted by the court, over the objection of the plaintiff, to testify that they considered the sidewalk in a reasonably safe condition, but neither the street commissioner nor either of the street committeemen would testify that he inspected the sidewalk until after the plaintiff was injured. After her injury they found it in bad condition, and recommended its reconstruction, and it was reconstructed and made safe for pedestrians to travel upon. The court gave the following erroneous instructions for the defendant: "(1) The court instructs the jury that the negligence of the defendant city is not to be presumed by failure of city to search for defects. It is only necessary for the city to keep its sidewalks in a reasonably safe condition for travel in the ordinary modes." "(6) The court instructs the jury that under the law it is the duty of defendant to keep its sidewalk in a reasonably safe condition for persons using the same in passing over and upon. And the presumption is that defendant discharged its duty in regard to the same, and before the jury can find for the plaintiff they must believe by the greater weight of the evidence that defendant on the 31st day of May, 1902, failed to keep its sidewalk in a reasonably safe condition for persons to pass over and upon, but that defendant had knowledge of the defective condition of the sidewalk at the place where plaintiff alleges she was injured, or that the defect was so obvious, and had continued for such a length of time, that the defendant could have known of it had it used proper and ordinary care in observing the condition of the sidewalk." Instruction No. 1 is misleading, in that it gave the jury to understand that it was not the duty of the town officials to pay attention to the streets; in fact, that a defective sidewalk or street would have to be thrust under their noses before they would be required to take any notice of it. It is the duty of town officials having jurisdiction over the streets of the town to observe their condition, and to make an inspection where there is, as was the case of the sidewalk in question, any visible evidence of a defect dangerous to the traveling public. No. 6 is erroneous for the reason the presumption that city officers do their duty does not ob tain where there is any evidence that they have neglected their duty. The presumption can only be applied where there is no evidence on the subject. The court refused the following correct and proper instructions asked by the plaintiff: "(2) The court instructs the jury that it is the duty of the defendant, the town of Canton, to keep the sidewalks on its streets in a reasonably safe condition for the use of persons traveling or walking thereon by day or night, and to exercise reasonable care and supervision over the same for this purpose. The defendant will be held strictly to the performance of this duty, which it will not be permitted to evade by shifting it on to some other party; and if the defendant fails to keep its sidewalks in such condition after it has known, or by the exercise of ordinary care and diligence might have known, of the unsafe condition thereof in time to repair the same, then it is liable for any injuries sustained in consequence of such failure by any person exercising ordinary care and caution." "(4) The court instructs the jury that if they shall believe from the evidence that said sidewalk was in an unsafe and defective condition prior to and at the time of plaintiff's accident thereon defendant cannot relieve itself from liability by showing that some person walking over the same did not notice such condition. It was the duty of defendant to discover and repair all defects in said sidewalk which it could have discovered by the exercise of reasonable diligence, and it makes no difference whether such defect be of a character to attract the attention of passers-by or not. (5) The court instructs the jury that as to what length of time would be required to justify the inference of notice to the defendant of the defective condition of the sidewalk there is no fixed or definite rule, and each case must depend upon the facts and circumstances attending it. Thus, if the jury believe from the evidence that Lewis street, at the point in question, was a street much traveled and in use by pedestrians, it was the duty of defendant to exercise greater diligence and care in looking after the condition of the sidewalk thereon, and keeping it reasonably safe for travel, than if said street was but little used. (6) The court instructs the jury that it is the duty of the sidewalk committee of defendant's board of trustees to exercise reasonable care and diligence in looking after and inspecting the sidewalks of the town of Canton in order that the defects therein be discovered and repaired, and the same be kept in a reasonably safe condition for public travel; and the negligence of said sidewalk committee in the performance of said duty, if shown by the evidence to exist, shall be deemed negligence on the part of defendant; and, if any injury results therefrom to any person using such sidewalk while in the exercise of ordinary care, defendant will be liable therefor. (7) The court instructs the jury that defendant's mayor, its street commissioner, its board of trustees, and the sidewalk committee of said board of trustees, are its officers who are charged with the supervision and repair of its sidewalks; and that therefore, if either the defendant's mayor, its street commissioner, or any member of its board of trustees, any member of said sidewalk committee, or any one or more of them knew, or by the exercise of ordinary care and diligence might have known, of the condition of said sidewalk in time to have repaired the same prior to plaintiff's alleged injury, then such notice or knowledge on the part of any one or more of such officers is notice to defendant. (8) It is not necessary to show actual notice to any of defendant's officers of the defective condition of the sidewalk in order to render the defendant liable for injuries resulting therefrom. It is sufficient to show that such defective condition had existed for such a length of time prior to the alleged accident that defendant's officers might have known of it by the exercise of ordinary care and diligence. (9) The court instructs the jury that for the purpose of showing that the unsafe condition of the sidewalk had existed for a sufficient length of time to charge defendant with notice of such unsafe condition thereof the evidence is not confined to the very board which caused the injury, but the jury may take into consideration the condition of said sidewalk at other places therein within a short distance of the place of the injury." The court erred in permitting witnesses for the defendant to testify that, in their opinion, the sidewalk in question was in a reasonably safe condition before plaintiff was injured. Whether or not it was in a reasonably safe condition was one of the issues of fact for the jury to pass on, and it was palpable error to permit witnesses to pass on this issue, and thus substitute their opinion for the verdict of the jury. Through these many errors plaintiff's apparently meritorious case was defeated. That she may have a fair trial, in which it is to be hoped no preju- | dicial error will intervene, the judgment is reversed, and the cause remanded. All con cur. ECKLES et al. v. MISSOURI PAC. RY. CO.* (St. Louis Court of Appeals. Missouri. April 18, 1905.) CARRIERS THROUGH SHIPMENT CONNECTING CARRIERS-LIABILITY OF INITIAL CARRIERLIMITATION OF LIABILITY-OPERATION. 1. Plaintiffs purchased meat of a packing company, requesting it to ship it to a certain point. The agent of defendant railroad company solicited the shipment, and furnished the agent of the packing company with a blank form of contract, which was filled out and signed by defendant's agent, and plaintiffs paid the freight. Held, that the contract was binding between defendant and plaintiffs, although not signed by the latter or by the packing company as their agent. 2. There is no presumption that the statutes of one state exist in another. [Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, § 101.] 3. Where a carrier is paid full freight for carriage to a destination beyond the termination of the carrier's line, the contract is to carry the goods through to their destination, and the first carrier is responsible for the delivery of the goods. [Ed. Note. For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 211, 762, 771, 781.] 4. A carrier contracting to transport goods to a point beyond the termination of its own line may by contract protect itself against liability for injury and delay not occurring on its own line. [Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 817-819.] 5. Defendant railroad company contracted to carry freight to a point beyond its line; the contract providing that the carrier should be liable only for the safe carriage of the goods on its own road, that the exceptions from liability made by all the carriers through whose hands the goods might pass should respectively operate in the carriage by them respectively, and that the liability of the companies as common carriers terminated on the arrival of the goods at the terminal station. The contract also provided that the goods should be transported over defendant's own line to a certain point, and there delivered to a certain named connecting carrier, with which defendant had a traffic arrangement. The freight charges for the entire distance were received by defendant. Held, that defendant was liable for a loss not occurring on its own line: the exemption clause in the contract of 'Rehearing denied May 16, 1905. shipment being merely for the purpose of fixing liability as between the several carriers, and not restricting defendant's liability to the shipper. 6. Where a carrier agreed to transport freight to a point beyond its own line by means of a certain designated connecting carrier, delivery to a different connecting carrier was a breach of the contract. [Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, § 787.] Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge. Action by Robert Eckles and others against the Missouri Pacific Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed. The material averments of the petition on which the case was tried are as follows: Defendant owned and operated a railroad running from South Omaha, Neb., to Pueblo, Colo., where it connects with other lines of railroad running from said point to the city of Los Angeles, Cal. Defendant is a common carrier of goods from South Omaha to Pueblo, and, by itself and over roads connecting with it at Pueblo, on to Los Angeles. On the 14th day of November, 1890, plaintiffs purchased of Swift & Co. 1,756 pieces of meat, known to the trade as "sweet pickled bellies," at $1,200, and requested Swift & Co. to ship the meat to Los Angeles, and pay the freight thereon. Swift & Co., in pursuance of said instructions, made a contract in writing (filed with the petition) by which defendant agreed to transport the goods to Los Angeles for $350, which was then and there paid to the defendant. The defendant agreed to transport the goods over its own road to Pueblo, from Pueblo to Trinidad over the Denver & Rio Grande Railroad, and from Trinidad over the Atchison, Topeka & Santa Fé Railroad to Los Angeles. The goods were loaded into a refrigerator car in good condition; the car iced and delivered to defendant, at South Omaha, on the 14th day of November, 1890; and on the 15th day of November, 1890, Swift & Co. drew a draft on plaintiffs for the price of the goods, plus the freight, amounting in all to $1.555, which plaintiffs paid. The goods reached Pueblo over defendant's road on the 17th day of November, 1890, and reached Trinidad on the 18th of November; but the defendant wholly failed and refused to transport the goods further than Trinidad, or to deliver or cause them to be delivered to the Atchison, Topeka & Santa Fé Railroad Company, or any other carrier at that point, for transportation, and for a period of 14 days failed to forward the goods from Trinidad to Los Angeles. After a lapse of 14 days defendant caused the goods to be transported by a connecting carrier other than the Atchison, Topeka & Santa Fé Railroad, and they reached Los Angeles on the 15th day of December, 1890. During the 14 days' delay in forwarding the goods from Trinidad, defendant neglected to ice the car in which the goods were shipped, and when |