Trout

This is a suit in equity to compel specific performance of a contract to make a certain testamentary disposition of property. From a judgment in favor of defendants, plaintiff appeals.

The action is of a type illustrated by a line of decisions in this state beginning with Owens v. McNally, 113 Cal. 444 , [33 L. R. A. 369, 45 Pac. 710 ]. [1] Though specific performance, in the literal sense of the term, cannot be given in this class of actions, nevertheless a court of equity, where the facts justify, may grant relief substantially the same as specific performance by treating the heirs as trustees and compelling them to convey the property in accordance with the terms of the contract.

The claim of appellant is that she and John S. Trout, now deceased, in December, 1909, entered into an oral agreement whereby Trout was to make his will in appellant’s favor. There is no claim that the agreement was induced by fraud on the part of decedent. The agreement, as alleged in the complaint, was substantially as follows: Trout proposed to appellant that if she would marry him and furnish a home for him during the remainder of his life, and would care for him, and would assist him "with her…