This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
A contract to make a will cannot be enforced in any way during the promisor's life if be bas not repudiated the contract since be has the whole of his life in which to perform.1 If the promisor repudiates the contract in his lifetime, specific performance in the strict sense of the term will not be given, but analogous relief will be given by declaring the promisor a trustee for the promisee as to the property contracted for.2 If the promisor dies without making the will agreed upon, the contract is broken. Specific performance in the literal sense of the term cannot, of course, be given, but the promisor can have substantially the same relief in equity by having the heirs, devisees, next of kin and legatees held as trustees of the property contracted for.3 Such relief is given under a contract to make one an "heir " where this is held equivalent to a contract to make a will,4 or under a contract to adopt a child.5
1 Manning v. Pippen, 86 Ala. 357; 11 Am. St. Pep. 46; 5 So. 572. "Strictly speaking an agreement to dispose of property by will cannot be specifically enforced, not in the lifetime of the party, because all testamentary papers are from their nature revocable; not after hia death because it is no longer possible for him to make a will, yet courts of equity can do what is equivalent to a specific performance of such an agreement by compelling those upon whom the legal title has descended to convey or deliver the property in accordance with its terms, upon the ground that it is charged with a trust in the hands of the heir at law, devisee, personal representative or purchaser with notice of the agreement as the case may be." Burdine v. Burdine, 98 Va. 515, 519; 81 Am. St. Rep. 741; 36 S. E. 992.
2 Duvale v. Duvale, 54 N. J. Eq. 581; 35 Atl. 750.
3 Townsend v. Vanderwerker, 160
U. S. 171; Brown v. Sutton, 129 U. S. 238; Owens v. McNally, 113 Cal. 444; 33 L. R. A. 369; 45 Pac. 710; Walters v. Walters, 132 111. 467; 23 N. E. 1120; Newton v. Lyon, 62 Kan. 306; 62 Pac. 1000; affirmed on rehearing, 62 Kan. 651; 64 Pac. 592; Carmichael v. Carmichael, 72 Mich. 76; 16 Am. St. Rep. 528; 1 L. R. A. 596; 40 N. W. 173; Stell-macher v. Bruder, 89 Minn. 507; 95 N. W. 324; Sharkey v. McDermott, 91 Mo. 647; 60 Am. Rep. 270; 4 S. W. 107; Kofka v. Rosicky, 41 Neb. 328; 43 Am. St. Rep. 685; 25 L. R. A. 207; 59 N. W. 788; Winne v. Winne, 166 N. Y. 263; 82 Am. St. Rep. 647; 59 N. E. 832; Spencer v. Spencer, 25 R. I. 239; 55 Atl. 637; Turnipseed v. Sirrine, 57 S. C. 559, 578; 76 Am. St. Rep. 580, 584; 35 S. E. 757; rehearing denied, 35 S. E. 1035; Brinton v. Van Cott, 8 Utah 480; 33 Pac. 218; Burdine v. Burdine, 98 Va. 515; 81 Am. St. Rep. 741; 36 S. E. 992; Hale v. Hale, 90 Va. 728; 19 S. E. 739.