The following opinion on rehearing was filed May 5, 1904. Former judgment of reversal modified:
Ames, C.This case is before us on a motion in form for a rehearing, but which in fact calls for nothing more than a modification of the former decision of this court. The accuracy of the statement of facts in the former opinion, ante, p. 160, is not questioned, and it is not necessary to repeat them here. The first ground of the motion, which is by *167tbe reversioners, appellees, is that the decision complained of improperly requires them to pay interest on the amount of the incumbrance on the premises at the timé of the death of the father, between the time it was discharged by the life tenant, the mother, and her death. Hoav considerable this interval was, is disclosed by none of the briefs, and as affecting the principle involved is perhaps immaterial. The subject matter of the equitable right of reimbursement on account of the payment of this lien, was not touched upon at the original hearing, so that we were both imperfectly informed as to the circumstances, and without the aid of counsel in the ascertainment of the principles applicable to the case.
There seems to be no question that the duty of a life tenant to preserve the premises from waste, includes the obligation to keep down the interest upon existing incum-brances. In case he pays the principal, the rule generally adopted is that the burden is apportioned between him and the reversioner or remainderman in such manner as that the tenant will “pay such a sum, as would equal the present value of the amount of interest he would probably have paid during his life, if the mortgage had continued so long in existence.” Tiedeman, Real Property, sec. 66. Or, as is said in Moore v. Simonson, 27 Ore. 117, “The life tenant must pay the present worth of an annuity equal to the annual interest running during the number of years which constitute the expectancy of life, the balance, after subtracting the sum thus ascertained from the incumbrance, should be borne by those in remainder.” 1 Washburn, Real Property (4th ed.), *96; 1 Story, Equity Jurisprudence (13th ed.), sec. 487; 3 Pomeroy, Equity Jurisprudence (3d ed.), sec. 1223.
But it is suggested that the right of contribution is personal to the life tenant and expires with the termination of her estate, or, at most, survives to her personal representative and can not be availed of by her successors in the possession of the premises. Ordinarily, this is perhaps true, but the right is one of equitable creation, and the *168authority that brought it into existence is doubtless competent to mold and modify it in its application to particular cases, in such manner that it shall not miss its original purpose of doing justice between the parties. As was said in the former opinion, there is no question of good or bad faith involved, and the arrangement by which the former incumbrance was discharged and the premises transferred to Windover, the second husband of the mother, was without doubt beneficial to her children who are the present complainants. The first mortgage was satisfied and the second mortgage was void, but the latter was accompanied by the personal obligations of the supposed purchasers whose conveyances Avere, perhaps, effectual to convey the life estate of the Avidow, and Avho satisfied the debt. In good faith they stepped into the shoes of the widoAv as respected her duties and obligations toward the land, and with regard to it toward the reversioners, and equity and good conscience require that they should be treated as having succeeded to her rights. Whether, or not, practically, the same result might be worked out under the doctrine of subrogation, pure and simple, we are not interested to inquire.
To the proposition that the reversioners are not chargeable with the value of the lasting and valuable improvements in an accounting for the value of the use and occupation, we are unable to give our assent. As AA~e have said and repeated, there is no suspicion of intentional wrong doing, but an appearance to the contrary, and, although it may be true that the heirs being minors can not be held to pay for benefits either by contract or estop-pel, yet we think that, under the circumstances of this case, a court of equity will not lend its affirmative aid to enable them to profit by the misfortunes or mistakes of their adversaries..
We are of opinion that justice, as complete as possible, will be done betAveen the parties, by so modifying the former decision of this court as to charge the appellants, as of the date when the first mortgage was paid off, with a *169sum equal to tlie then present value of the amount of interest the life tenant, the mother, would have been required to pay during the actual continuance of her life, as shown by the record, and that the reversioners, the ap-pellees, l>e required, before being let into possession, to pay, or charge as a lien upon the premises, the residue of the sum paid for the discharge* of the mortgage, with 7 per cent, interest from the date of payment.
Oldham, C., concurs. Hastings, C., not sitting.I!v the Court: It is ordered that the former decision of this court be so modified as to charge the appellants, as of ihe date when the first mortgage was paid off, with a sum equal to the then present- value of the amount of interest the lift* tenant, the mother, would have been required to pay during the actual continuance of her lift*, as shown by the record, and that the reversioners, the appellees, be required, before being let into possession, to pay, or charge as a lien upon the premises, the residue of the sum paid for the discharge of the mortgage, with 7 per cent, interest from the date of payment.
Judgment accordingly.