The opinion
JONES, Chief Judge
(dissenting in part).
I agree to the results reached as to all the plaintiffs except W. Fay Garrett, who in the light of all the circumstances should not be permitted to recover.
This may seem a strange distinction, but we feel it is justified. What is one *197 man’s meat may be another man’s poison. The whole matter was left to his judgment. He had been in the real estate business in Florida. He moved to Norfolk and took charge of the estate. Since 1926 he has been in charge of the sale of these lots. He has had no other business except an occasional investment of his own. True, he had no real estate license and sold no other property except his own. He did not need to do so. He received a 5 percent commission as executor, and a 10 percent commission on the price of any lots sold.
The husbands of the other plaintiffs are employed in other places and mostly in other states with the exception of Elmer Wing, who is a member of the Pilots Association engaged in full-time maritime work. We realize that according to some of the decisions the business activity of one who is handling a business may be imputed to others who are interested, but the circumstances here are entirely different.
W. Fay Garrett had practically no other business. Why should he? He has been doing well for many years. The other heirs have confidence in him and apparently he has justified their trust.
True, he has paid an income tax on his commissions, but that is inextricably interwoven with his business of the sale of lots; in fact, that is his business. He can do just enough advertising to keep the business going, which is a good business. Evidently the other heirs are satisfied with the increasing value of the properties and with the regular flow of the proceeds.
In defining the term capital assets, which are taxed at one-half the regular rate, section 117(a)(1), which is the applicable provision, is as follows:
“The term ‘capital assets’ * * does not include * * * property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business * * *>»
This provision fits plaintiff W. Fay Garrett’s case like a glove. His tax was paid on the disposal of his interest in the estate. He had made that a part, in fact the major part, of his life business. This he had a right to do, but in doing so brought himself squarely within the terms of the quoted part of section 117. For 27 years this has been his principal business. It still is.
We think there is a valid distinction in his position and that of the other heirs.
LITTLETON, J., concurs in the foregoing dissent.