This is a suit for specific performance of a contract to sell land, and in the alternative for damages. The trial court, without a jury, denied a recovery.
Although several questions are presented in the briefs, affirmance of the judgment is required by the holdings we make with reference to two questions, and we shall discuss only those two.
The land was owned by W. A. Brady. The writings which are the basis of the suit were executed, respectively, on January 10 and January 12 of 1946. On February 27, 1946, Brady entered into a written agreement with Melvin Loftin and wife, Maggie Loftin, who are appellees here, which obligated Brady, among other things, to execute a will leaving the property now in suit to the Loftins, and which obligated the Loftins, among other things, to take Brady into their home and to minister unto his needs. The agreement recited that Brady was executing such a will at the same time; he did execute a will leaving this property to the Loftins; and the will was thereafter probated. Brady died on March 11, 1946. The trial court found that the Loftins took care of Brady until the date of his death, and that they had no notice of appellant’s claim during such time.
Appellant argues that the Loftins, as beneficiaries under the will, took only such title as the testator had, burdened with appellant’s equitable claim. They quote the following from 68 Corpus Juris 496: “So, also, the vendor in a contract of sale, or an option to sell, may devise 'his interest, and the devisee will take the land subject to the same obligation as the testator, the right of the owner of the equitable title to the land not being affected by the vendor’s will.”
■Citing such cases as Jones v. Eastham, Tex.Civ.App., 36 S.W.2d 538, writ refused, appellant says that a will takes effect only upon the death of the testator, and has no binding effect during his lifetime, and that it vests no rights during the lifetime of the testator. The cases cited by appellees do not involve wills made pursuant to a contract to leave property to a designated beneficiary.
This case does not involve an agreement to leave all of one’s estate, as distinguished from specific property, nor an agreement invalid under the Statute of Frauds, Vernon’s Ann.Civ.St. art. 3995, nor a failure to make the will agreed upon, nor a revocation of a will made pursuant to a contract. Here the agreement to make the will was in writing, the will was executed and later probated, the beneficiaries fully performed their agreements, and they had no notice up to the time of the testator’s death of appellant’s claim.
A valid agreement to make a will may be enforced. Rights accruing to the beneficiary are in their nature contractual rather that testamentary. This distinction is observed in Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 169 A.L.R. 1, and in many other decisions. In the Nye case, for instance, the Supreme Court recognized that the interest of one of the parties to the suit in the land in controversy would be an undivided one-fourth if his rights were testamentary, and one-half if his rights were contractual by reason of the will in question having been executed pursuant to an agreement to make a will. In Andrews v. Andrews, 116 Wash. 513, 199 P. 981, it was held' that property acquired as á result of a contract to devise was community property, although the law of the state provided that property acquired by gift, bequest, devise or descent should be separate property of the spouse.
*772It is the general rule, as stated in 38 Tex.Jur. 740, that performance of a contract to convey land can be enforced against purchasers who had knowledge of the contract but not against innocent purchasers.
Here the Loftins acquired legal title to the property b.y virtue of the will and the probate of the will. Their rights in the property were contractual rather than testamentary. They acquired the property without notice of plaintiff’s claim and they paid a valuable consideration for it. It is our opinion that they and their successors in title occupy the status of innocent purchasers. The plaintiff is not, therefore, entitled to specific performance as against them.
Plaintiff sued in the alternative for damages for breach of the contract. The trial court found that there was no proof of enhancement in value between the date of the contract and the date the will was filed for probate, treating the last date as the time the breach of contract occurred. The will was filed for probate on March 14, lp46. Especially in view of what we have said above, we believe that the breach of contract should be treated as having occurred not later than the time'the will was filed- for probate. There is no proof of enhancement in, value up to that time, hence no damage is shown to have been suffered- by plaintiff.
■The judgment is affirmed.