specially concurring.

So far as the opinion of the court holds that there was an enforceable oral express trust it rests upon a ground not taken by the plaintiff State Treasurer and not suggested in the record, briefs or oral argument. The position of the court, as I understand it, is that such an oral trust will be enforced where the alleged trustee does not repudiate it in reliance upon the statute of frauds, and, as the defendant has not invoked the statute, there is no occasion to look further, either for a resulting trust or a constructive trust.

While it is held by most courts that the defense of the statute of frauds is personal and is deemed waived unless pleaded or raised in some other appropriate manner by the defendant, 49 Am Jur 908, Statute of Frauds § 601, there is indication in our decisions that this is not the rule in Oregon with respect to the creation of a trust. See Presbytery of Willamette v. Hammer, 235 Or 564, 567, 385 P2d 1013; Chance v. Weston, 96 Or 390, 395, 190 P 155; Chance v. Graham, 76 Or 199, 213, 148 P 63.

But as I view it that question is not before us. There are no formal pleadings in this case and none were required as it is a proceeding in probate: ORS 115.010. The issue was made by the State Treasurer’s Objections to the probate court’s Determination of Inheritance Tax—objections based on the ground that the property now involved was not included in the inventory of the estate for the purpose of that determination. There is nothing in the transcript of testimony to indicate on what theory the plaintiff was proceeding, though a lawyer might probably have *414sensed that some kind of a trust was claimed. Tlie precise ground for recovery of the tax is disclosed, however, by the plaintiff’s brief in this court. lie contends that the conveyance of Henry Buesing’s interest in the land to his brother gave rise to either a resulting or a constructive trust. Both arise by operation of law and neither is within the statute of frauds: ORS 93.020.① I think the evidence establishes a constructive trust and that the defendant’s omission to invoke the statute of frauds is in the circumstances of this case immaterial. The oral agreement—or, more accurately in this case, the implied agreement—could be shown “not for the purpose of enforcing it, but simply to restore the parties to the situation which obtained before the voluntary conveyance was made:” Moses v. Moses, 140 NJ Eq 575, 583, 53 A2d 805, 173 ALR 273. As stated by Professor Ames: “His bill is not for specific performance of the express trust, but for restitution of the status quo.” Ames, Constructive Trusts Based Upon the Breach of an Express Oral Trust of Land, 20 Harv L Rev 549, 551. See, also, 1 Scott, Trusts (2d ed) 309, § 44.

The evidence brings the case within the definition of a constructive trust in the Restatement, Trusts 2d, *415§44 (1) (b)② as adopted and applied by this court in Hanscom v. Irwin, 186 Or 541, 208 P2d 330, and Marston v. Myers et ux, 217 Or 498, 342 P2d 1111. Cf. Shipe et al v. Hillman, 206 Or 556, 292 P2d 123. There was a confidential relation between Henry and Charles, not only because they were brothers, but also were partners and, in addition, the testimony shows that, while all three brothers gave their full time to the business of the partnership, Henry and Benjamin relied upon Charles to determine the major questions of policy in the conduct of the business of the partnership. There was no express promise by Charles to reeonvey, but none was needed. As Judge Cardozo put it in Sinclair v. Purdy, 235 NY 245, 254, 139 NE 255, in holding sufficient the evidence of a constructive trust: “Though a promise in words was lacking, the whole transaction, it might be found, was ‘instinct with an obligation’ imperfectly expressed (Wood v. Duff-Gordon 222 N. Y. 88, 91).” As in Sinclair v. Purdy, it can also be said of this ease that the conveyance “was made as a form, that both so understood it, and that the transaction was consummated in confidence that the holder would keep the faith.” Of course, there was in this case no bad faith on the part of Charles, but as we held in Hanscom v. Irwin, supra, 186 Or at 564-566, a constructive trust may arise even though at the time of the transfer the transferee in*416tended to perform the oral trust. His refusal thereafter to perform is an abuse of the confidence.

*415“(b) the transferee at the time of the transfer was in a confidential relation to the transferor, or

$ ‡ ❖ ^

*416It is argued in the opinion of the court that the theory of a constructive trust is not supported because there is no evidence that Charles refused to reeonvey to Henry. But Charles’ refusal to pay the inheritance tax, when demanded by the State Treasurer, on the ground that the deed from Henry transferred to Charles the entire interest, legal and equitable, in the property amounted to a repudiation of his obligation. Were the court to fail to find and declare the constructive trust thus created, Charles would be unjustly enriched by escaping payment of the tax. In the circumstances disclosed Henry had a beneficial interest in the property at the time of his death and Charles’ succession to that interest made it subject to tax under the inheritance tax law of Oregon: In re Lowengarfs Estate, 160 Or 118, 84 P2d 105.

As I read, the opinion of the court it does not hold, though it intimates that it might be held, that ’Charles was the trustee of a resulting trust. If, as the court determines, there was an express trust, a resulting trust could not have arisen.

“A resulting trust arises where a person makes or causes to be made a disposition of property under circumstances which raise an inference that he does not intend that the person taking or holding the property should have the beneficial interest therein and where the inference is not rebutted and the beneficial interest is not otherwise effectively disposed of. ¡Since the person who holds the property is not entitled to the beneficial interest, and since the beneficial interest is not otherwise disposed of, it springs back or results to the person who made the disposition or to his estate, and the person holding the property holds it upon a re-*417suiting trust for Mm or Ms estate.” Restatement, Trusts 2d, 322-323.

In recent cases tMs court has approved section 403, Restatement, Trusts 2d, which reads:

“Where the owner of property transfers it without declaring any trust, the transferee does not hold the property upon a resulting trust although the transfer is gratuitous.”

See Marston v. Myers et ux, supra, 217 Or at 509; Shipe et al v. Hillman, supra, 206 Or at 564-565. See, also, 4 Scott on Trusts (2d ed) 2923-2924, §404.1; Bogert, Trusts and Trustees (2d ed) § 453.

Professor Scott and the Restatement say there are three categories of resulting trusts, to-wit: (a) the failure of an express trust; (b) the full performance of an express trust without exhausting the trust estate; and (e) the payment of the purchase price of property by one who directs that title be taken in the name of another. See Scott, op. cit, §404.1; Bogert, op. cit., §451; Restatement, op. cit., 323 and Comment a to § 404. Resulting trusts in such instances long have been recognized by courts of equity as arising “by implication or operation of law:” ORS 93.020 (2), and, therefore, not within the statute of frauds. Bogert, op. cit., § 452, at page 503.

The opinion of the court rejects the authority of Scott and the Restatement; I would accept it.

I concur in the result.

This is an appeal by the State Treasurer from an order of the Union County Circuit Court overruling his objections to the determination of the inheritance tax in the estate of Henry Buesing, deceased. The objections were made on the ground that certain property in which decedent had an interest had been excluded from the net taxable estate in determining the inheritance.

Henry, Charles, and Benjamin Buesing, who were brothers, formed a partnership in 1903 for the purpose of operating a farming and cattle business. Prom 1915 to 1931 the brothers acquired four parcels of land. Two of the deeds designated the brothers as tenants in common; two deeds designated the grantees as partners.

In 1940 Henry disclosed to Charles his intent to marry. On May 3, 1940, at Charles’ insistence, Henry conveyed all of his interest in the property which the brothers had previously acquired and which had been used for partnership purposes. The purpose of the conveyance ivas to prevent Henry’s prospective wife *403from getting an interest in the property.① No consideration was paid for the conveyance. A gift tax return was not filed. Henry was married on December 4, 1941. The marriage was annulled on June 29, 1942. After the annulment the property was not conveyed back to Henry. When asked why the property was not reconveyed, Charles testified, “Oh, I don’t know just why.” He added, “Never was anything said about it and I just forgot about it and that land.”②

*404In 1955 the three brothers joined in the sale of three parcels of property referred to as the Sehroeder, Taylor Bros, and Anson sales. The property was sold under executory land sale contracts. The down payment and subsequent payments on the contracts went into the partnership bank account. Later in 1955 Benjamin died. The payments continued to be deposited in the partnership bank account and Henry and Charles regarded the account as owned equally by them. Charles and Henry reported the capital gain and the income derived from these contracts on an equal basis. Henry died in 1962' leaving all of his interest in the partnership and the property to Charles.

The taxpayer contends that since Henry conveyed all of his property to Charles in 1940 the only interest he had at his death was the one-sixth interest, he received upon Benjamin’s death (Benjamin having left one-half of his one-third interest to eaeh of his brothers after Henry’s conveyance to Charles). The State Treasurer contends that Henry owned a one-half interest in the partnership and its assets at his death, and that this interest was taxable when it was devised to Charles.

The trial court held that the deed from Henry to Charles conveyed all of Henry’s interest, both legal and equitable, in the property then owned by him and, therefore, the only taxable interest was the one-sixth interest which Henry had received upon the death of Benjamin.

Ordinarily a deed absolute in form with or without consideration creates in the grantee the entire interest in the land, both legal and equitable. In the early English law, since it was common for the grantee to hold land for the benefit of the grantor, it was pre*405sumed that a gratuitous conveyance was not intended to vest the beneficial ownership in the grantee and, consequently, he held the legal title upon a resulting use for the grantor. In modern law, since it is common to make gratuitous conveyances with the intent to vest complete ownership in the grantee, it is held that such conveyances without more do not give rise to a resulting trust for the grantor.③

However, a trust may arise out of a gratuitous conveyance absolute in form upon other grounds. Thus a constructive trust may be imposed upon the grantee as a remedial device to avoid unjust enrichment. And an express trust may be created if the grantor manifests an intention to create it.

The intention to create an express trust may be inferred from circumstances attending the conveyance. A resulting trust is also deemed to arise from circumstances attending the conveyance.④ The difference appears to be that in the ease of an express trust *406the circumstances give rise to an inference that the grantor had an affirmative intention to create a trust, whereas in the case of a resulting trust the circumstances give rise to an inference that grantor had no intention to give the beneficial interest to the transferee.⑤ Whether this expresses a valid or useful conceptual distinction we need not consider.⑥ It is enough to note that a trust of either category may arise out of conduct alone, that is, where there is no expression of intent and the inferences leading to the conclusion that a trust was or would have been in*407tended "by the grantor if he had thought about it, are drawn entirely from circumstantial evidence.

In the present case the conveyance was made for the purpose of preventing Henry’s prospective wife from obtaining an interest in his property. It seems reasonable to infer from this circumstance that the conveyance was not made to vest the beneficial interest in Charles but simply to set up in him a facade of complete ownership which was to hide the continued beneficial ownership previously enjoyed by Henry. The conveyance could have been made for the double purpose of defeating a marital interest and of making a gift to Charles. But there were no circumstances from which it could be inferred that Henry intended to make a gift to Charles. Quite to the contrary, the evidence indicates that the transfer to Charles was made to serve partnership purposes. Charles testified that it was he who requested the transfer. In fact, he stated “I made him do that,” i.e., execute the deed. This clearly is not the setting for a gift—it is the obvious maneuver of the partners erroneously assuming that it was necessary to rearrange the appearance of ownership in the interest of continuing the partnership affairs unembarrassed by claims of an outsider to property used in the partnership business.

Although it was not shown that Charles expressly promised to hold Henry’s interest in trust, the obligation could be inferred from the circumstances. Justice Cardozo’s language in Sinclair v. Purdy, 235 NY 245, 139 NE 255, 258-59 (1923) is appropriate. In that case the grantor, to escape the importunities of friends asking him to go bail for them, executed a deed absolute in form to his sister. There was no proof that the sister agreed to hold in trust for the grantor. The court said, “Though a promise in words was lacking, *408the whole transaction, it might be found, was ‘instinct with obligation’ imperfectly expressed [citing Wood v. Duff Gordon, 222 NY 88, 91].” Although this language was used in developing the idea that a constructive trust was created (on the assumption that the Statute of Frauds had not been complied with), it is equally pertinent in a case such as the present to show how a promise may be inferred from circumstances so as to create an enforceable intent-formed oral trust.

Although the grantor’s intent at the time of making the conveyance determines the nature of the interest created, it is permissible to look at the conduct of the parties after the conveyance in ascertaining that intent.⑦ Their conduct may be regarded as a “practical construction” of the deed.⑧ It was shown that after Henry’s conveyance the three brothers sold a part of the property used by the partnership and that the down payment and subsequent installment payments were deposited to the partnership account.⑨ This conduct would indicate that the partners regarded Henry as having a beneficial interest in the property he had previously conveyed to Charles. In other respects the property was treated as partnership property in pre*409eisely the same way as it was treated prior to the transfer by Henry to Charles.⑩

The circumstances in this case give rise to an inference that Henry Buesing had no intention to give to Charles a beneficial interest in the property conveyed, and that it was the intention of the parties that the property conveyed should be held and used as partnership property in the same manner as it was held and used before the conveyance. It is immaterial whether this conclusion is explained upon the ground that the transfer to Charles gave rise to an express trust (inferred from conduct) or a resulting trust.

The facts of the present case do not give rise to a constructive trust inasmuch as a constructive trust arises only if the transaction does not create an enforceable express or a resulting trust.⑪ A constructive trust is simply a remedial institution invented by equity to avoid unjust enrichment in situations where there is no other available equitable remedy. If, for example, personal property is transferred to the transferee upon an express promise to reconvey to the *410transferor and the transferee refuses to reconvey in accordance with the agreement a constructive trust does not arise, because all of the elements necessary to the existence of an express trust are present. The same would be true in the case of an oral trust of land unless the defense of the Statute of Frauds were interposed.⑫ There is nothing in the record of the present case to show that the -Statute of Frauds was interposed as a defense or in any way relied upon in contesting the state’s claim to an inheritance tax.⑬

The Statute of Frauds being no obstacle we have, then, a perfectly good oral trust of land which is enforceable in equity, if an express or implied agreement to reconvey can here be found. As previously explained, there being an enforceable express or implied trust, there could be no constructive trust.

It has been suggested that if the transferee is in a confidential relation with the transferor and he refuses to reconvey as promised, a constructive trust arises. If this analysis is -accepted, then every trust sought to be enforced against a trustee who refuses to perform would be a constructive trust.

Moreover, although it is not necessary to this thesis, *411there is no evidence in this case that the transferee refused to reconvey to the transferor. Charles testified that he did not reconvey because “never was anything said about it and I just forgot about it and the land.” The evidence discloses no circumstances either before or after the annulment of Henry’s marriage to indicate that Charles refused or would have refused upon demand to reconvey to Henry the interest conveyed. It seems clear that after the annulment of Henry’s marriage Charles would have reconveyed upon demand. We shall never know whether there would have been threatened unjust enrichment and the need for equitable relief of any kind.

The taxpayer contends that the State Treasurer is estopped to assert that the conveyance in question did not vest complete ownership in Charles on the ground that the State Tax Commission had so treated the conveyance in assessing the income tax.⑭

We accept the view that under appropriate circumstances the state of Oregon may be estopped to assert a claim inconsistent with a previous position taken by it. But we do not think that the circumstances in the present ease justify the imposition of an estoppel upon the state. The inheritance tax and the state income tax are administered by separate agencies of government. The two systems of taxation rest upon separate theories giving rise to different problems in the administration of the respective taxes. The State Tax Commission, in order to inhibit tax evasion, may *412find it advisable to treat a transfer of title as presumptively creating a beneficial interest in the transferee. For the same reason, the .State Treasurer may deem it necessary in the administration of the inheritance tax to regard the same transfer as presumptively leaving in the transferor an economic interest. The presumption applied by one agency does not necessarily foreclose the future application of an opposing presumption by the other. The State Tax Commission’s auditor, in treating Charles as the owner of the property for the purpose of charging him with a capital gain upon its sale, relied upon an abstract of the Commission’s legal department. The abstract pronounced, in effect, that when the legal title to property is held by a partner in his individual name and not as a partner and thereafter the property is sold, the capital gain must be reported by the title holder and cannot be split among the partners.⑮ We do not understand the abstract to say that the partners are precluded from splitting the capital gain if it is shown that the title is held for the benefit of the partnership or one or more of the other partners individually. If Charles had brought to the auditor’s attention the purpose of Henry’s conveyance to Charles as revealed by the record in this case, it is quite probable that the capital gain in question would have been allocated among the partners. The taxpayer has not shown any previous action on the part of the state making inequitable the imposition of the inheritance tax upon the basis used by the State Treasurer.

The judgment is reversed and the cause is remanded with directions to enter an order sustaining the State Treasurer’s objections to the determination *413of the inheritance tax in the estate of Henry Buesing, deceased.