dissenting: I agree with the contentions of the Commissioner in this case that the original partnership was destroyed on May 16,1936, with the death of the partner, Arthur Lehman, and that the partnership interest which the taxpayer sold was an interest in a new partnership formed after May 16,1936, and that his rights as to claiming a long term capital gain must be dated from the date of the formation of the new partnership. The case principally relied upon by the prevailing opinion, Robert E. Ford, 6 T. C. 499, does not seem to be authority for the conclusion of the prevailing opinion. In the Ford case a partner withdrew from a partnership and disposed of his interest. The Uniform Partnership Act, which was then in force in the State of Minnesota, where the question arose, provided that a transfer of interest does not óf itself dissolve a partnership.
In the case at bar section 62 of the Partnership Law of New York specifically provides that a partnership shall be dissolved by the death of any partner. This clause was directly under consideration by the Circuit Court of Appeals for the Second Circuit in Darcey v. Commissioner, 66 Fed. (2d) 581; certiorari denied, 290 U. S. 705, wherein it was held that after the death of a partner the partnership could not be maintained against a provision of the statutory law of New York by any contract between the parties. The court held that the partners could agree as to a division of partnership income after the death of a partner, but that such agreement did not result in prolonging the life of the partnership. Therefore the partnership of Lehman Brothers expired with the death of Arthur Lehman and the interest which the taxpayer held in that partnership prior to Arthur Lehman’s death terminated at that time.
Oppek, /., agrees with this dissent.