(dissenting in part).
I concur in the opinion and decision so far as it concerns the item of $12,-595.57 received in settlement of the claim for interest and discusses the award of counsel fees. But I cannot agree with the court’s exclusion from the gross estate of the $10,000 item here in dispute. The agreement negotiated at arm’s length between appellants and Wolfson unambiguously characterizes this sum as a settlement of appellants’ claimed right to post-mortem profits under the partnership agreement, and contains no hint of some claim independent of that agreement to compensate for Wolf son’s delay in paying the other sums due them.1 This evidence alone is sufficient to support the trial judge’s finding in favor of the Commissioner and fix the character of the claim settled; indeed, there is no substantial evidence to the contrary.
Moreover, since appellants have in fact received $10,000 on their claim, I do not think it necessary for tax purposes to make our own assessment of its validity. Surely a wage earner who shows that he sleeps on his job cannot successfully contend that sums received from his employer are nontaxable “gifts,” rather than earnings. Appellants clearly accepted the $10,000 as a performance by Wolfson of his obligations under the partnership agreement. It is this performance which should be taxed, and not some other or different performance which might have been required by the agreement while it was still partly executory.
. The agreement states that “a dispute has arisen as to the construction of the aforesaid partnership agreement with respect to * * * (2) the right of the Estate of Max Mandel to participate in the profits and other accruals of” the partnership after Max Mandel’s death.