The opinion
ARundell,
dissenting: In the case of Estate of Uzal H. McCarter, 34 B. T. A. 535, we definitely held that we would follow the rule laid down by the Second Circuit in Miller v. Commissioner, 80 Fed. (2d) 219, to the effect that a designation to the broker of the shares to be sold is controlling although the certificate delivered does not correspond with the instructions given. I think we depart from that ruling in the instant case when we hold that the mistaken delivery by the banker of certain certificates shall prevail as an identification of what was intended to be sold over the very definite instructions of the owner to the contrary. The two rulings can not be reconciled. We should adhere to the rule announced in Miller, supra.
Van Fossan, Mellott, and Arnold agree with this dissent.