in Seibert's Appeal (Pa.), 18 Week. Not. Cas. 276. In In re Schouler, 134 Mass. 426, such a bequest is sustained, and it is said: "Masses 231 are religious ceremonies or observances of the church, . . . . and come within the religious or pious uses which are upheld as public charities." Our conclusion is, that as to the devise of the farm and the bequest to the sisters of charity, the will must be held inoperative, and the property passes to the residuary estate. As to the bequest for the saying of masses for the testator, the will is sustained.

The judgment will stand modified and affirmed.

WILLS-PAROL EVIDENCE.-A cardinal rule in the construction of wills is, to give effect to the intention of the testator. The will must speak for itself, and from it the intention of the testator must be gathered: See monographic note to Chappell v. Missionary Soc., 50 Am. St. Rep. 279, on extrinsic evidence to explain wills. Evidence as to the intention of a testator separate and apart from that conveyed by the language used in the will is not admissible for the purpose of interpreting the will: Clarke v. Clarke, 46 S. C. 230; 57 Am. St. Rep. 675.

LEGACIES.-BEQUESTS FOR SAYING MASSES are valid though they contain no element of a charitable use: See note to McHugh v. McCole, ante, p. 106; also monographic note to Hoeffer v. Clogan, 63 Am. St. Rep. 266, on what are charitable uses or trusts. See, also, monographic note to Fifield v. Van Wyck, 64 Am. St. Rep. 756-772, on the certainty and unity in charitable trusts.

FAUST V. CHICAGO AND NORTHWESTERN RAILWAY CO.

[104 IOWA, 241.]

CARRIERS OF LIVESTOCK-DESTRUCTION OF ANIMALS-RECOVERY.-If livestock are shipped under a contract which does not require the shipper to ride in the car carrying the stock but in the caboose, and such stock are destroyed by the burning of the car in which they are transported, the shipper may recover on proof that the fire was not due to any act or negligence on his part, unless there is proof that the loss was not caused by his failure to remain on the train, or by his failure to care for the stock while in transit.

CARRIERS OF LIVESTOCK-READING SHIPPING RECEIPT-INADMISSIBLE EVIDENCE.-In an action to recover the value of horses and other property lost by fire while being transported over the defendant's road, evidence that the plaintiff did not have time to read the shipping contract before signing it is not admissible under an averment of the petition that, after the property was loaded, the defendant's agent presented the contract to the plaintiff, and requested him to sign it; and that the plaintiff under stood the paper to be a pass, to carry him to the place of delivery.

CARRIERS OF LIVESTOCK-SHIPPING RECEIPT- IMMATERIAL EVIDENCE HARMLESS ERROR.-In an action to recover for property lost during the course of shipment, the admission of immaterial evidence that the plaintiff did not have time to read the shipping contract before signing it, is not prejudicial to the

defendant, if the court's instructions treat the contract as in force, and require the jury to so consider it.

CARRIERS OF LIVESTOCK-DESTRUCTION OF ANIMALS-NO RECOVERY, WHEN.-If the evidence, in an action to recover the value of horses and other property burned on the defendant's train, clearly shows that, at a certain station, where the train stopped, the plaintiff, who was the shipper and who, by the contract, was to accompany the stock, left the caboose to go to the stock-car but was not thereafter seen on the train, there is no right of recovery, although the plaintiff claims to have been left at such station, where his reputation for truth and veracity is bad, where some of his testimony is unreasonable and some of his statements untrue, where he seeks to recover for more horses than carcasses were found in the car, and where it appears that he, himself, was auswerable for the fire which destroyed his property.

Action to recover the value of certain horses and other property burned and destroyed on one of the defendant's cars during the course of transportation. The plaintiff obtained a verdict and judgment, and the defendant appealed.

Hubbard, Dawley & Wheeler, for the appellant.

J. F. Martin, for the appellee.

242 ROBINSON, J. On the twenty-fourth day of January, 1894, the plaintiff placed in a box-car of the defendant at Lisbon, Iowa, several horses, harness, a wagon, a buggy, and other articles, all of which were consigned to the plaintiff for delivery at Carroll. The car thus loaded was taken by the defendant, and hauled to a point a short distance west of Ames, where its contents were discovered to be on fire. Efforts were made to extinguish the fire, and to prevent damage to other cars of the train, and the burning car was hauled to Ontario, the first station west of Ames, and the fire was there extinguished, but not until the sides and roof of the car were burned, and its contents were destroyed. The plaintiff seeks to recover the value of the property which he placed in the car.

243 The defendant denies that the property destroyed was in its possession, denies that it was negligent in what it did concerning it, denies that it is in any manner responsible for the loss of the property, and avers that the fire which destroyed it was caused by the act of the plaintiff. In a counterclaim, the defendant asks judgment for the amount alleged to have been agreed upon for hauling the property from Lisbon to Carroll. In connection with the shipment of the property, the plaintiff signed a contract which contained the following provisions: "Shipment of livestock in carloads, or less than carloads, will only be taken at the rates named herein, after this contract or agreement shall have been signed by the company's station agent,

and the owner or shipper, by which it is agreed and understood that such owner or shipper shall load, feed, water, and take care of such stock at his own expense and risk. . . . . All persons in charge of livestock will be passed on the train with and to take care of the stock, and will be expected to ride in the caboose attached to the train." The plaintiff claims that the train containing his car left Lisbon at 3 o'clock in the afternoon of January 24th, and that he rode in his car to Cedar Rapids, where he purchased a lantern; that he rode in the caboose from Cedar Rapids to Belle Plaine, where there was a change of conductors and cabooses; that there was considerable delay at Belle Plaine; that he went into restaurant for a few minutes, and when he came out could not find his car; that he then purchased a ticket for Nevada, and took the first westbound passenger train for that place in order to catch his car; that he reached Nevada a little before daylight, and failing to learn anything in regard to the train which contained his car, went to a hotel and waited until the next train for the west arrived; that he took that train and went on to Carroll, and there learned that his property had been destroyed as stated.

244 1. The plaintiff testified that he did not read the shipping contract before he signed it, and was asked, "Why didn't you?" An objection by the defendant was overruled, and the plaintiff was permitted to answer: "Why, the freight was right there, and the agent says, 'Now, you want to get right on, or you will have to wait until night.' I was not quite ready for it yet. I left a coat down to the hotel, and a lantern I bought at Lisbon I did not get. I wanted to go after it, but could not do it, and a man said, 'You are a fool to have that agent run you out of town before you are ready.' I did not have time to read it before the freight started." A motion of the defendant to strike out the answer as immaterial and irrelevant was overruled, and the defendant complains of the ruling which permitted the jury to consider that evidence. We do not think it was material to any issue presented by the pleadings. In an amendment to his petition the plaintiff alleged that, after the property was loaded, the agent of the defendant presented to him the contract, and represented it to be a pass to carry him to Carroll, and requested him to sign it, and that he understood that it was a rass; that it seeks to change the liability of the defendant in regard to receiving, transporting, and delivering the property, and to excuse the defendant for negligence, and is void and of no effect; and that the only purpose for which it was given was to pass the plaintiff as a passerger in the ca

boose of the train. There is no controversy over the fact that the contract included a pass, and the testimony in question did not tend to support any statement contained in the petition in regard to the contract, excepting that it was intended to pass the plaintiff as a passenger, and should not have 245 been admitted: See Mulligan v. Illinois Cent. Ry. Co., 36 Iowa, 188; 14 Am. Rep. 514; Wilde v. Merchants' etc. Transp. Co., 47 Iowa, 247; 29 Am. Rep. 479. But we think that the evidence could not have been prejudicial, for the reason that the charge to the jury treated the contract as in force, and required the jury to so consider it.

2. The defendant asked the court to instruct the jury that "the burden is upon the plaintiff to show, by a preponderance of the testimony, that his loss did not occur by reason of his acknowledged failure to remain upon the train with his stock and care for it. If he has failed to show you by such preponderance that the loss was not occasioned by such failure upon his part, then he cannot recover in this action." The defendant also asked the court to instruct the jury that the burden vas on the plaintiff to show that his loss did not occur by reason of any failure on his part to carry out his agreement to take care of the horses while in transit, and that the mere fact that he remained at Belle Plaine when his car went west, whether left accidentally or by reason of his own negligence, would not excuse him from his contract to accompany the stock, or notify the proper officers of the defendant that he had been left, and could not care for the stock. The court refused to so instruct and charged the jury that, to entitle the plaintiff to recover, he must establish by a preponderance of the evidence that the fire which destroyed his property was not occasioned by any act of negligence on his part, and that, if he established that fact, he was entitled to recover for the property which he delivered to the defendant. It is said in 4 Elliott on Railroads, section 1549, that "where the owner accompanies the stock under a special contract to care for them himself, he may well be presumed to be as well acquainted with the facts in regard to their loss or injury as the carrier, and as they may have been injured because of his own negligence, or because of 246 their inherent nature and propensities, and not by the negligence of the carrier, it is but just to require him to show the facts. The rule in such cases, therefore, is that the burden of proof is upon the plaintiff to show that a breach of duty upon the part of the carrier caused the injury or loss, and, if the carrier is liable only for negligence, the burden is upon the plaintiff

to show such negligence": See, also, Terre Haute etc. R. R. Co. v. Sherwood, 132 Ind. 129; 32 Am. St. Rep. 239. But we do not think this case is within the rule of the authorities cited. Of course, the plaintiff should be held to the performance of his part of the agreement, but there was nothing in the circumstances or character of the loss shown to justify the conclusion that it resulted from the absence of the plaintiff. His contract did not require him to ride in his car, but in the caboose, and, had he been in the latter, he could not have prevented the fire if it was not caused by his agency. Therefore, if he showed, as the charge required him to do, that the fire was not occasioned by any act or negligence on his part, he was entitled to recover. We do not find that the court erred with respect to instructions refused or the charge given. 3. The appellant contends that the verdict and judgment are not sustained by the evidence. There is much in the record to sustain the claim thus made. The testimony of the plaintiff is in some respects unreasonable, and in conflict with facts which must be regarded as established. He states that the train which contained his car reached Belle Plaine about midnight; that he then went to his car and remained in it probably half an hour or longer; that there were three bales of hay in the middle of the car, only one of which had been opened; that he found everything in it in good order, and when he left extinguished the light in his lantern, placed it on the seat of the buggy, closed the car door, and probably fastened it, although he says he is not sure as to that, and then went 247 into a restaurant for warmth and something to eat; that he remained in the restaurant probably "twenty minutes, or so"; that there were several trains in the yard, and switching being done; that he went to the place where he had left his car, but could not find it; that he made inquiries, but could not learn anything of it; that he finally went to the ticket office, purchased a ticket for Nevada, and remained at the station, most of the time in the waitingroom, for three-quarters of an hour, or an hour, when a passenger train from the east arrived; that he entered one of the cars before daylight, and went to Nevada to catch his car; that when he arrived at that place he did not enter the depot, although he inquired for the train his car was in, but did not learn anything of it; that he went to a hotel, remained there an hour or two, without registering, procured something to eat in a candy store, and went to the depot about 9 o'clock; that he asked for a ticket for Carroll, but was given one for