The opinion
AkuNdell,
dissenting: This case was tried and briefed on the narrow issue of whether the sum of $10,911.91 admittedly received by petitioner in 1933 was income from a partnership. Respondent contended that, by reason of the contract entered into between petitioner’s deceased husband and his partner, Baron, the death of the former did not serve to terminate the law partnership. On this point I think the respondent was wrong and the majority opinion does not question this conclusion. “Death operates as a *551 dissolution of a partnership. The law has never been otherwise.” Exchange Bank v. Tracy, 77 Mo. 594 . It seems equally clear that no new partnership was entered into between the surviving partner, Baron, and the estate of Judge Barth, or petitioner, individually. Exchange Bank v. Tracy, supra. It follows that on the issue raised the taxpayer should prevail.
I am further of the opinion that the sum received in 1933 was not income under any provision of the revenue act. As I construe the partnership agreement, the amount received was a partial liquidation of decedent’s interest in the partnership. At the time of Barth’s death he had an interest in the work then in process in the partnership office and the fees to be derived therefrom. ' That interest was an asset of his estate. Realizing the difficulty of fixing an exact valuation for that interest at any particular time, the partners agreed upon a method of liquidating it over a period of four years following the death of either one. It does not appear that the amount received by the widow exceeded the fair value of Barth’s interest in the firm at the time of death; at least, there is no claim that it does. Cf. City Bank Farmers Trust Co., Executor, 29 B. T. A. 190. It, therefore, seems wrong to me to affirm the Commissioner’s determination on this possibility, when it was not a point in issue, and the whole basis of the Commissioner’s determination has been shown to be wrong. Taylor v. Commissioner, 70 Fed. (2d) 619; affd., 293 U. S. 507 .