Appeal from the Circuit Court of Baltimore City (CULLEN, J.).
The cause was argued before Henderson, Prescott, Horney and Sybert, JJ., and Keating, J., Associate Judge of the Second Judicial Circuit, specially assigned.
HORNEY, J., delivered the opinion of the Court.
In Davis v. Mercantile Trust Company, 206 Md. 278, 111 A.2d 602 (1955), where it was held that George Marion Sisk was not entitled (as one of the "seven children of [the testator's]
nieces and nephews") to a share of the income from the trust created by the residuary clause of the will of S. Griffith Davis, deceased, for the benefit of certain of his relatives, this Court (per Henderson, J.), in leaving open the question as to the disposition of the present and future income from such share, because it was not considered below or argued in the briefs, stated (at p. 289):
"There may be a question as to whether it should be divided between the [other] six great-nephews and great-nieces, cf. In Re Sharp  2 Ch. 190, or between all of the persons entitled to shares. Or there may be an intestacy, as suggested in argument."
For a time after the receipt of the mandate, the trustees named in the will (and the survivor and/or successor of them) distributed the income from the invalid share equally among the other residuary legatees. Subsequently, when a doubt arose as to whether the income from the share was being properly distributed, the trustees ceased distributing the income therefrom and allowed it to accumulate pending a construction of the will and judicial direction as to its proper disposition. To that end, this proceeding was instituted by the Mercantile-Safe Deposit and Trust Company and others, as trustees under the will, against the heirs at law and next of kin of the testator and their legal representatives.
In his answer to the bill of complaint, Boudinot S. L. Davis, as half brother and one of the next of kin of the testator, alleged, among other things, that the invalid share of income should be distributed as intestate property and suggested that the court should also rule as to the ultimate disposition of the corpus of the trust. Answers were also filed by other parties in interest.
The chancellor, by his decree, declared that there was no intestacy as to the invalid share, ruled that the income therefrom should be divided among the other beneficiaries of the residuary trust, and refused to rule as to the ultimate distribution of the corpus. Boudinot S. L. Davis appealed.
The primary question presented is whether the share of income bequeathed to George Marion Sisk, which was invalidated
by judicial determination in Davis v. Mercantile Trust Company, supra, should be distributed to the next of kin as intestate property or to the other income beneficiaries of the residuary trust. We think the income should be paid to the other beneficiaries and we see ...