of any allegations or facts which render section 2 inapplicable. Therefore the only issue was the negligence of the defendant. Dooley v. Sullivan, 218 Mass. 597, 106 N. E. 604; Pope v. Heywood Bros. & Wakefield Co., 221 Mass. 144, 108 N. E. 1058. (134 Md. 572) McCOMAS v. WILEY et al. (No. 13.) (Court of Appeals of Maryland. June 24, 1919. Rehearing Denied Oct. 8, 1919.) SUR June 22, 1917, together with her husband, Charles L. Wiley, and their only child, an infant daughter, and three other persons, when the automobile in which they were traveling was struck by an express train at a road crossing near Whitehall Station in Baltimore county. It is alleged in the petition that Mrs. Wiley survived her husband and their child, and that under his will, by which all of his property was devised and bequeathed to her absolutely, her personal representative is entitled to receive from the administrators cum testamento annexo of the estate of Mr. Wiley a fund of $1,913.19, which their administration account shows to be the amount of the personal estate for dis 1. DEATH 5-PRESUMPTION AS TO VIVORSHIP. The issue whether a wife survived her hus-tribution. A previous petition having this band and their child, who perished with her in a common disaster, must be decided without aid of any legal presumptions; it being a settled principle of the common law that, when several lives are lost in the same disaster, there is no presumption of survivorship by reason of age or sex, or that all died at the same moment. 550(2)-OPINION BASED ON 2. EVIDENCE object in view was held demurrable because of the insufficiency of its allegations, and an order dismissing it was affirmed by this court, without prejudice to the right of any of the parties to claim the whole or any part of the estate in a suitable proceeding. McComas v. Wiley, 132 Md. 406, 104 Atl. 52. In the answer filed to the pending petition it is denied that Mrs. Wiley survived her husband and child, and it is averred that they all perished in a common disaster, and it is impossible to determine the order of 3. DEATH 6-EVIDENCE 6-EVIDENCE SHOWING THAT their respective deaths, and the respondents WIFE SURVIVED HUSBAND AND CHILD. Evidence held to warrant conclusion that wife, who together with her husband and child was killed when their automobile was struck by a train, survived her husband and child, and that therefore her administrator was entitled to all of the husband's personalty bequeathed to her absolutely, and which would otherwise go to her next of kin immediately, under Code, art. 93, § 326. Appeal from Orphans' Court, Harford County. "To be officially reported." Action by Charles H. McComas, administrator c. t. a. of the estate of Mary Edith Wiley, deceased, against Thomas H. Wiley and others, administrators c. t. a. of the estate of Charles L. Wiley, deceased. Petition dismissed, and McComas appeals. Reversed and remanded. See, also, 132 Md. 406, 104 Atl. 52. Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ. accordingly contend that Mrs. Wiley's personal representative has no interest in the estate. Upon the question of fact raised by the petition and answer, testimony was adduced in support of the opposing theories and after final hearing the orphans' court reached the conclusion that the petition should be dismissed. An appeal from its order giving effect to that decision has brought the case a second time to this court. [1] The issue presented by the record must be decided without the aid of any legal presumptions. This is a settled principle of the common law. "By that law, when several lives are lost in the same disaster, there is no presumption of survivorship by reason of age or sex; nor is it presumed that all died at the same moment." Cowman v. Rogers, 73. Md. 405, 21 Atl. 65, 10 L. R. A. 550. In such a situation it is necessary that a claim which is dependent upon the occurrence of the deaths in a particular order shall be supported by satisfactory proof of the sequence of events thus relied upon, and in the absence of such evidence there is no certain William Pinkney Whyte, Jr., of Baltimore, basis upon which the asserted right can be for appellant. Shirley Carter, of Baltimore, and S. A. Williams, of Bel Air, for appellees. URNER, J. The petition in this case was filed in the orphans' court of Harford county by the appellant, as administrator of the estate of Mary Edith Wiley, who was killed about half past 8 o'clock on the night of sustained. The claim here made by the administrator of the personal estate of Mrs. Wiley depends upon the result of the inquiry as to whether she survived her husband. While her next of kin would be entitled to the estate, even if she predeceased her husband, yet in that event the fund would not go to them through the hands of the petitioner as administrator, (108 A.) but immediately, as provided by statute. At the time of the accident Emil P. LipCode, Art. 93, § 326; Redwood v. Howison, pert and George B. Shaffer were a short dis129 Md. 577, 99 Atl. 863; Vogel v. Turnt, tance away, and they reached the forward 110 Md. 192, 72 Atl. 661; Wallace v. Du end of the train in time to assist in removBois, 65 Md. 161, 4 Atl. 402. ing the four injured persons from the engine to the roadside. All were then living, according to the testimony of Lippert and Shaffer. Each of these witnesses stated that Mrs. Wiley was breathing, and they estimated 10 or 15 minues to be the length of time that she remained alive. To meet the burden of proving the allegation that Mr. Wiley's death occurred before that of his wife, the petitioner offered first the testimony of Hugh L. Morrison, the engineer in charge of one of the two locomotives attached to the train which was involved in the accident. This witness testified that when the train was brought to a stop after the collision, with the engines about 300 yards beyond the crossing, he lighted a torch and went to the front of the first engine, upon which he found three women and a man under the top of the automobile. One of these persons was Mrs. Wiley, and the others were Mr. and Mrs. Kirkwood and Mrs. Anderson. They were all alive, Mr. Morrison testified, when they were removed from the engine. Mrs. Wiley was the first one removed, and placed on the ground beside the track. She lived 12 or 15 minutes, the witness stated, giving evidence of life during that time by moaning and moving her lower limbs. Mr. Morrison said he was assisted in removing the injured persons from the engine by Mr. Joyce, a fireman, and by some other men who were strangers. The respondent called as a witness Dr. Milner Bortner, who just before the accident was waiting in his automobile for the train to pass, and saw it collide with Mr. Wiley's car as it was driven on the crossing from the opposite side. Dr. Bortner testified that he immediately went up the track along the side of the train, and found Mr. Wiley's dead body about 60 feet from the crossing. Proceeding about an equal distance further on, he saw the severed foot of the baby. A short distance beyond he came to the automobile, lying between the train and a high mass of rock, and barring his further advance on that side of the track. The doors of the cars were opened about that time, and the doctor crossed to the other side and went to the front of the train, arriving there just as the last of the bodies was being laid on the ground. He found that Mrs. Wiley was then dead, Mr. Kirkwood about expiring, Mrs. Kirkwood alive and conscious, and Mrs. Anderson alive, but unconscious. Later examination disclosed that Mrs. Wiley had sustained a fracture at the base of the skull and that her neck was broken. The witness stated that these injuries must have caused instantaneous death. When asked whether he could tell the order in which the deaths of Mrs. Wiley and her husband occurred, Dr. Bortner answered: John W. Akehurst, the engineer on the first of the two locomotives, was next produced as a witness. He testified that after the train stopped he went to the front of the engine and saw the legs of a man and a woman lying over the bumper, and he then started back along the train to see the conductor and obtain assistance. On the way back he saw the leg of a little girl, and found a man lying dead in the ditch, who was afterwards identified as Mr. Wiley. The lifeless body of the child was found "Yes; for the simple reason that Mrs. Wiley nearby under the motor of the automobile. being on the side nearest the engine" [as the When Mr. Akehurst returned to the head of doctor had observed before the collision], and the train, all of the injured had been remov- her death being caused by impact with the enthe train, all of the injured had been remov-gine, and Mr. Wiley's death was not caused by ed from the engine, and the youngest of the impact with the engine, but was caused by three women, who was Mrs. Wiley, was then, being thrown against the wall of rock 60 feet as the witness said, "laying on the ground from where collision occurred. The fracture there moaning. I asked her if I could do of the skull in his case was caused by a piece of anything. She could not mention anything jetting rock against the side of the wall, which or say a word, but she was living, working was 60 feet from where the accident occurred, so that it is just the difference between the immediate impact and the time it took him to travel the 60 feet." her muscles a little. I honestly say she lived 15 minutes, if not longer." The next witness was Frank E. Joyce, who was the fireman on the leading engine. He lighted a torch and went around in front of the engine, just after his engineer, Mr. Akehurst, started to the rear. He found three women and a man on the locomotive. At Being further questioned as to why he stated that Mr. Wiley's death was caused by his being, thrown against the rock, the witness said: "The fact that the next morning I examined the rock, and found the hair and the brain tissue dashed against the rock at that point." that time Mr. Morrison, the other engineer, appeared. They first removed Mrs. Wiley. She was then living, the witness said, and continued to live about 15 minutes. Mr. In reference to the question whether the Kirkwood lived only 7 or 8 minutes, and fact that Mrs. Wiley's neck was broken Mrs. Kirkwood and Mrs. Anderson died last. would necessarily indicate that she died in stantly from such an injury, Dr. Bortner [ gine, did not testify in the case, having died said: some time before the hearing. "It depends entirely on condition of affairs. If it is what is ordinarily called a broken neck, where there is torn ligaments and pressure, rarely ever do they live; death is usually instantly; if it is a fracture of the bone in the neck, they live a long time." The respondents also produced as a wit ness Harry M. Foster, who was only about 150 feet distant from the crossing at the time of the accident, but who went first to the side of the train on which the dead bodies of Mr. Wiley and the child were lying, and did not come to the front of the Describing how Mrs. Wiley's neck was train until the removal of the four persons broken, the doctor stated: The second witness for the respondents was M. Stirling Curry, who saw the collision from the porch of the dwelling of James I. Miller, about a quarter of a mile distant. In company with Mr. Miller he hurried to the scene of the accident. None of the injured persons on the front of the engine had then been removed. Mr. Curry testified that he held Mr. Kirkwood in his position on the engine after the top of the automobile was taken off, and while the three women were being carried from the locomotive and placed beside the railroad. The witness said that Mrs. Wiley was the first to be thus removed, and he concluded she was dead at that time from the fact that so far as he could see she was not breathing and was motionless. Dr. Bortner reached the front of the train about 10 minutes after the arrival of Mr. Curry, according to the testimony of the latter witness. Mr. Miller, who accompanied Mr. Curry to the place of the accident and from the engine had been completed. He was asked what he noticed in reference to Mrs. Wiley's condition, and said: "Nothing more than I looked at her. She was perfectly quiet. I could not see her move. I could not see her breathe. I considered her dead." He estimated that he reached the front of the train about 10 minutes after the collision. W. Evans Anderson, a justice of the peace and the acting coroner, who arrived at the scene of the accident about 15 minutes after it occurred, testified that Mrs. Wiley was then dead. The only other witness who testified to being at the front of the train soon after the collision was Walter S. Ford. He arrived there 5 minutes after the accident, he said, and found Mrs. Wiley dead at that time. She had then been taken from the engine. Dr. A. F. Van Bibber was asked, and allowed over objection, to express his opinion, upon a hypothetical question, that from the injuries to Mrs. Wiley described in Dr. Bortner's testimony death was instantaneous. Testimony was offered by the respondents tending to prove that the engineer, Morrison, who testified in the case that Mrs. Wiley lived 12 or 15 minutes after the accident, had deposed at the coroner's inquest that to the best of his knowledge all of the injured persons found on the engine were living when they were removed, but Mrs. Wiley may possibly not have been then alive, and that the witness Shaffer, who testified at the hearing in this case that Mrs. Wiley survived for 10 or 15 minutes, had previously signed a written statement that she died just as she was being placed on the ground. Both of these witnesses denied that the earlier statements attributed to them had been correctly reported. Reference has now been made to all of the testimony which we consider most material to the present inquiry. It appears that there were five witnesses who saw Mrs. Wiley before she was taken from the locomotive. Four of these testified positively that she was then living, and one stated that he regarded her as dead, because he did not notice that she gave any signs of life. Of the witnesses who saw her for the first time after she had been moved to the ground, the engineer Akehurst, who reached that point 5 minutes after the collision, testifies that (108 A.) 1919.)† (93 Vt. 392) 1. LANDLORD AND TENANT 114(3), 118(4)— LESSEE HOLDING OVER SUBJECT TO COVENANTS AND CONDITIONS OF ORIGINAL LEASE. who arrived there about the same time, states that she was then dead. The other witness- W. H. HOBBS & SON v. GRAND TRUNK es appear to have been still later in makRY. CO. (No. 157.) ing their observations of Mrs. Wiley's con- (Supreme Court of Vermont. Essex. Oct. 7, dition; but if she was alive when she was removed from the engine, she undoubtedly survived her husband and child, as their immediate death from the injuries they received is clearly proven. In view of the preponderance of the testimony of those who saw Mrs. Wiley on the front of the locomotive, we can have no hesitation in holding that she was alive at that point of time, unless our decision should be governed by the opinion of Dr. Bortner, supplemented by that of Dr. Van Bibber, that her injuries must have resulted in death instantly. The expression of opinion obtained from Dr. Van Bibber is open to the objection that it is based in part, as the hypothetical question required, upon Dr. Bortner's opinion as to the effect upon the spinal cord of the injury to Mrs. Wiley's neck and of the fracture of her skull at the base of the brain. [2, 3] Opinion testimony, which is based upon the conclusions or inferences of other witnesses, is not admissible. Coughlin v. Cuddy, 128 Md. 83, 96 Atl. 869; Harris v. Hipsley, 122 Md. 433, 89 Atl. 852. The testimony of Dr. Bortner that Mrs. Wiley must have died at the instant she was injured is not so convincing and conclusive as to induce us to adopt his opinion in preference to the direct observation of witnesses, who testify that she was in fact alive some time after her injuries were received. If, however, his opinion were to be accepted as decisive upon the question as to the sequence of the deaths with which we are concerned, the result would nevertheless be adverse to the ultimate interests of the respondents. As already noted, Dr. Bortner testified that Mr. Wiley survived his wife for the brief interval of time between the colliding of the engine with the automobile and the striking of his head against the rocks 60 feet distant. If this theory that Mrs. Wiley predeceased her husband were to be adopted, the estate in litigation bequeathed to her by his will, would belong to her next of kin by force of the statute to which we have referred. But our conclusion from the evidence is that Mrs. Wiley survived her husband and that by virtue of the provisions of his will in her favor the administrator of her estate is entitled to the fund in controversy. The jurisdiction of the orphans' court to decide a case of this nature, which was questioned in the argument, was definitely sustained on the former appeal. 132 Md. 410, 104 Atl. 52. Order reversed, and cause remanded, to the end that an order may be passed in accordance with the opinion of this court; the costs to be paid out of the estate. Where, after expiration of lease, lessee con- ANCE OF RELATION AFTER EXPIRATION OF Tenant's occupancy, unexplained, for a period of 15 years after expiration of lease, would tend to show consent of lessor to accept and treat him as a tenant after expiration of original lease. 3. LANDLORD AND TENANT 90(2)-TENANCY BY IMPLICATION. If a tenancy by implication was created by holding over, it would, in the absence of evidence to the contrary, continue subject to the covenants and conditions of the original lease, and the lease was proper evidence of what those covenants and conditions were. 4. DEEDS 7-INTEREST OF TENANT HOLD ING OVER MAY BE CONVEYED. If relation between lessor and lessee after expiration of written lease was that of landlord and tenant, the lessee had an interest in the storehouse and land on which it stood that he 2734, and each succeeding grantor had a like could convey by deed, in view of G. L. §§ 12, interest which he could convey. 5. TRIAL 420-WAIVER OF EXCEPTION TO OVERRULING OF MOTION FOR DIRECTED VER For other cases see same topic and KEY NUMBER in all Key-Numbered Digests and Indexes Action by W. H. Hobbs and son against the Grand Trunk Railway Company. Judgment for plaintiffs, and defendant excepts. Judgment reversed, and cause remanded. Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ. Harry B. Amey, of Island Pond, and Alexander Dunnett, of St. Johnsbury, for plain tiff. Drew, Shurtleff, Morris & Oakes, of Lancaster, N. H., for defendant. SLACK, J. This suit is to recover the value of a storehouse that formerly stood on the defendant's right of way, on lot No. 4, in Brighton, Vt., and was destroyed by fire May 10, 1914. The plaintiff's evidence tended to show that the building was erected by Samuel D. Hobson under the terms of a lease from the defendant to him, dated October 1, 1884. This was not disputed. For the purpose of showing title to the building, the plaintiffs offered in evidence a quitclaim deed of lot No. 4 from Nathan L. Woodbury to Samuel D. Hobson, dated September 20, 1871, a warranty deed from the latter to E. F. Hobson, dated April 1, 1905, and a like deed from each of several successive owners down to the plaintiff. These deeds were admitted subject to the defendant's exception. [1] Our first inquiry is: What were the relations between him and the defendant, concerning this land, after the expiration of the original lease? It is true, as urged by the plaintiffs, that he did not hold the premises under that lease, because that had expired; but it does not necessarily follow that he was not a tenant of the defendant during that time and bound by the same covenants and agreements contained in that lease. While the relation of landlord and tenant can exist only by virtue of a contract, express or implied, such relation may arise when a tenant, under a lease for a fixed term, holds over after the expiration of the lease. Amsden v. Atwood, 67 Vt. 289, 31 Atl. 448. If a tenant for a fixed term holds over after the expiration of the lease, with the consent or acquiescence of the landlord, he thereby becomes a tenant at will or from year to year according to the circumstances. In either case he holds the premises subject to all the covenants and conditions of the original lease, without any new stipulation or bargain to that effect. Amsden v. Atwood, supra, and cases there cited; Park v. Castle, 19 How. Prac. (N. Y.) 29; Bacom v. Brown, 9 Conn. 334; Conway v. Starkweather, 1 Denio (N. Y.) 113. Hobson died before the trial, and there was no direct evidence that he paid rent after the termination of the lease. But this is not The defendant offered in evidence the lease material because assent by the landlord may to Samuel D. Hobson, above referred to, and be shown by any act on his part which recupon objection thereto by the plaintiffs, that ognizes the party holding over as tenant. In being for a fixed term of years which ex-Jones on Landlord and Tenant, par. 205, pired January 1, 1889, neither Hobson nor the rule is stated thus: his successors were thereafter bound by any of the stipulations or agreements contained therein, it was excluded subject to the' defendant's exception. These two exceptions present the main questions in the case. They are considered in their inverse order. "Time only is necessary, in the absence of other evidence, to establish the consent or acquiescence of the landlord in a case where the landlord, himself, is relying upon the renewal agreement. As a matter of fact, very slight acts on the part of the landlord, or a short election and make the person holding over his lapse of time, are sufficient to conclude his tenant." The lease was for the term of five years from January 1, 1884. The defendant gave its consent therein to the erection of a warehouse on the leased land "on the conditions Mr. Taylor, in his work on Landlord and contained in this deed." One of the condi-Tenant (volume 1, par. 22), says: tions contained therein was as follows: "And it is also agreed, that the party of the second part, takes all the risk as to fire arising from engines or otherwise, and that he shall, in no case have any claim upon the said railway company on account of fire from any cause whatsoever, whether occasioned by the negligence or acts of the servants of said railway company or otherwise." The lease also provided for the removal of the building at the expiration of the lease by the lessee, or upon his failure to remove the same within 30 days the defendant might do it at his expense. It contained other provisions not necessary to notice here. Hobson took possession of the land on which the storehouse was erected, under and by virtue of this lease, and continued to occupy the same during the full term of the lease and or a slight lapse of time, are sufficient to con"Very slight acts on the part of the landlord clude his election and make the occupant his tenant." Providence County Savings Bank v. Hall, 16 R. [2, 3] Hobson's long occupancy, unexplained, would be evidence tending to show the consent of the defendant to accept and treat him as a tenant after the expiration of the original lease. If a tenancy by implication was created, it would, in the absence of evidence to the contrary, continue, subject to the covenants and conditions of that lease. The lease was proper evidence of what those cove nants and conditions were. As was said in Amsden v. Atwood, supra, "The lease is not |