¶1Former opinion modified June 15, 1920.
¶2Petition for Rehearing.
¶4On petition for rehearing. Former Opinion Modified and Rehearing Denied.
¶5Messrs. Raley & Raley, for respondents and for the petition.
¶6Mr. James A. Fee, Mr. R. W. Montague and Mr. Stephen A. Lowell, for appellants, and also for the petition.
¶7Department 1.
¶8
¶9*527Upon petitions for rehearing filed by both parties, we find this practical difficulty in the way of carrying out such a decree: The amount now accumulated, not including the principal, aggregates more than double the amount of the original fund. To use this large sum at once for the purchase of books would be to fill it with editions which would soon be superseded, and leave the library to depend on the small income provided by annual interest on the original $5,000 bequest for its support.
¶10This being the case, it is the part of prudence to act with reference to conditions as they are, rather than to attempt the impossible task of enforcing the technical terms of the will. We say impossible, because the will substantially provided that the accumulations of the fund should be expended annually, and, owing to this controversy as to who was the beneficiary, such expenditure was halted; the accumulations were not expended annually, or at all for several years; hence the large sum now on hand.
¶11We are of the opinion, under the circumstances, that it would be to the best interest of the library fund to add these accumulations to the principal, with certain deductions hereafter mentioned, and to treat the whole amount so accruing as principal, and apply the income thereafter arising annually to the purchase of books and supplies for the library'. This course will furnish a larger annual income for the use of the library hereafter, and seems to us a much better business proposition than putting the whole sum now on hand immediately into the purchase of books.
¶12From the accumulated income now on hand, it will be directed that $1,200 be applied during the current year, ending December 30, 1920, for the purchase of *528books and such other supplies as the trustee may deem proper. In addition, it is ordered that the plaintiffs be paid from the fund $300 as attorneys’ fees. The trustee, being somewhat in the position of a stakeholder between the city and the Commercial Association in this litig’ation, should not be required to pay his attorney wholly from his own funds, and will be allowed to compensate himself to the extent of $250 from the accumulations to the fund. The plaintiffs will have a decree against the city for their costs and disbursements herein to the extent of $150, or such lesser sum as may be taxed, otherwise the decree will be as indicated in our original opinion. ,
¶13This disposes of the case, and we trust the animosities that this controversy has engendered will now be laid aside, and that all parties to it will work together to make the bequest of Mr. Sturgis an instrument of good in the community which' he so generously remembered in his hours of sickness and in the shadow of impending death.
¶14Former Opinion Modified and Rehearing 'Denied.