(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.1
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.2
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. Elbran Realty Corp., 255 App.Div. 852, 7 N.Y.S.2d 531, 532; Noll v. Smith, 250 App.Div. 453, 294 N.Y.S. 562, 564, 565; Hart v. Goadby, 138 App.Div. 160, 123 N.Y.S. 166, 171; 4 Bogert, Trusts and Trustees, § 870, p. 2533; Williston on Contracts § 355; Restatement of the Law of Trusts § 282 (2); and 65 Corpus Juris § 748.
Hart v. Goadby, 138 App.Div. 160, 123 N.Y.S. 166, 167, 171; Noll v. Smith, 250 App.Div. 453, 294 N.Y.S. 562, 566.