majority"> JOHN L. MILLER, District Judge.

In this action to compel payment of a pension, defendants move to strike plaintiff’s jury demand on the grounds that plaintiff’s action is one of an equitable nature and is not triable as of right by a jury. 1 Plaintiff’s allegation of eligibility is denied by defendants. It is not disputed, however, that in order for plaintiff to recover a sum of money due him from trustees, he must first establish that he is eligible for the pension. Thus, the question of eligibility is a crucial one.

The Restatement of Trusts 2d sets forth the applicable law.

“§ 197. Nature of Remedies of Beneficiary

“Except as stated in § 198, the remedies of the beneficiary against the trustee are exclusively equitable.”

*69 “§ 198. Legal Remedies of Beneficiary

“(1) If the trustee is under a duty to pay money immediately and unconditionally to the beneficiary, the beneficiary can maintain an action at law against the trustee to enforce payment. * * * ”

On the present state of the record, plaintiff’s demand for a jury trial must be stricken, but if at the pretrial it should appear that the trustee is under a duty to pay the money immediately and unconditionally to the plaintiff then his demand for a jury trial should be reinstated.

Order

And Now, this 30 day of Dec., 1960, it is Ordered and Directed that the defendants’ motion to strike plaintiff’s jury demand be and the same hereby is granted.

. “Under Rule 38 [28 U.S.C.A.], the issues and not the form of the case determine the right to a jury trial, and if the basic issue is one which historically was for the jury, a jury demand should be respected. The right of trial by jury is preserved in suits at common law only.” Vol. 9, Cyclopedia of Federal Procedure, § 31.17, p. 209.

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