Percival

As guardian of John Pervical Luce and Dorothy Hume Luce, minors, appellant, W. W. Percival, a citizen of Utah (hereafter called plaintiff), brought this action against appellee, Harold Luce, a citizen of Nevada (hereafter called defendant), in the District Court of the United States for the District of Nevada to recover of defendant $7,600, with interest and costs. Defendant answered. The answer contained no counterclaim. No reply was ordered, 1 and none was filed. Thus, with the filing of the answer, the pleadings were closed. Thereafter both parties moved' for judgment on the pleadings. 2 The court granted defendant’s motion and entered judgment in his favor. Plaintiff has appealed.

The question is, Did the complaint state a claim upon which relief could be granted ? 3 If it did, the granting of defendant’s motion was error. If it did not, no error was committed.

The complaint stated that plaintiff was Idle general guardian of the above-named minors; that he and they were residents and citizens of Utah; that defendant was a resident and citizen of Nevada; that the minors were children of defendant and Dorothy Lehman (formerly Dorothy Luce) ; that on February 25, 1925,…

(dissenting).

Although the weight of authority is that the children are not third party beneficiaries of the contract between husband and wife, they are the beneficiaries of a trust obligation of the wife to collect the money for their sole use and so to use it. The briefs of both litigants agree and the answer alleges that the wife has refused to perform her trust obligation. Instead she returned payments sent her under the contract with notice that she would receive no more. In this situation the trust beneficiaries are entitled to sue in the trustee’s behalf in a suit in which the trustee is joined.

Under the present rules of Federal Procedure making no distinction between actions at law and suits in equity and seeking to facilitate the final determination of litigants’ rights, it would seem proper not to dismiss finally but with permission to amend and.join the mother rather than require a new action.

Cherry v. Howell, 2 Cir., 66 F.2d 713 ; Grant v. Insurance Co., 121 U.S. 105, 112 , 7 S.Ct. 841 , 30 L.Ed. 905 ; President and Trustees of Bowdoin College v. Merritt, C.C., 54 F. 55, 60, 61 ; Fleming, Adm’r v. Holt et al., 12 W.Va. 143, 153 ; Brooklyn Free K. Soc. v.…