The opinion
Van Foss AN,
dissenting: I am unable to concur in the prevailing opinion of the Board. It has long been accepted as almost axiomatic that an executor “ stands in the place and is regarded as the representative of the deceased person for the purpose of settling his affairs and distributing his estate.” 11 R. C. L. 23. The reasoning-employed in the majority opinion seems to me to disregard utterly this conception and to ignore also the fundamental fact that Congress intended to tax actual profits received from a sale of property and did not contemplate fictitious or arbitrary bases for determining the same. Goodrich v. Edwards, 255 U. S. 527 .
In McKinney v. United States, 62 Ct. Cls. 180, in which a writ of certiorari was refused by the Supreme Court, a case in all essential respects identical with the instant case, the Court of Claims held directly the opposite of the view adopted by the Board. I believe that the reasoning of that case is sound and that the same principles should govern here.
Aeundell and Trussell concur in the dissenting opinion.