The opinion
Holmes, J.,
concurring. I concur with the reasoned opinion of the majority that R.C. 5301.03 is inapplicable to the circumstances before us. The easily ascertained purpose of the statute is to provide notice of the existence of a trust to “all subsequent bona fide purchasers, mortgagees, lessees, and assignees for value, a conveyance, mortgage, assignment, or release of mortgage by such grantee * * *.” (Emphasis added.)
The evil guarded against by R.C. 5301.03 is that of the undisclosed, equitable interest held by one who is not the grantee of the legal interest. The use of such legal interest as security might otherwise work mischief to one with no knowledge of the hidden interest of another.
*299 The creditors in the present case are judgment creditors, which judgments are based on debts in personam. None of the transactions between the parties utilized the property in question as security for the obligation. The judgment creditors do not, and cannot, complain that they were misled as to the existence of the alleged trust. Consequently, their need to demonstrate that the property is not the subject (res) of a trust is entirely unrelated to the notice provisions of R.C. 5301.03.
I would add, however, that there is no issue for determination as to whether a trust was created by appellant Bardes’ activities. A cursory review of the record demonstrates that no such trust could have been successfully created. The law has always viewed with suspicion the claim by a debtor of the existence of a trust when such debtor is both the holder of the equitable interest and the holder of all legal rights. See, e.g., R.C. 1335.01(A). 1
In the present case, appellant reserved to himself a “life estate” by various letters to his children which, while demonstrating his feelings at the time, do not qualify as trust instruments. Such reservation was furthermore in conflict with the deed, which granted a full fee simple to appellant as trustee. Also the finding of the court below, which is undisputed, is that appellant operated the farm property as if he owned it in fee simple, i.e., not to the present benefit of anyone else. Further, he did not inform any of the mortgagees that he had made such property the subject matter of a trust; and he listed the property as a personal asset on later financial statements and not as either subject to life estate or trust restrictions. Appellant, in all the time he allegedly held as trustee, never filed a separate tax return on behalf of the trust nor were any separate bank accounts maintained. Therefore, no trust formalities were ever complied with.
Most importantly of all, it is clear from the above that appellant wanted complete control of the farm property during his lifetime and that the trust should begin upon his death. Such manifestation of testamentary intent may only be effectuated through a testamentary instrument, with attendant formalities, none of which are present in the case sub judice. This also demonstrates a lack of the required present intent to create a trust.
*300 Finally, the fact that appellant maintained the power to revoke any and all interests in the property, and to assign the same to others, renders the property subject to the claims of creditors. For even if a valid trust had been created, R.C. 1335.01 provides full authority to compel appellant to exercise such reserved powers in favor of creditors. See fn. 1.
Wright, J., concurs in the foregoing concurring opinion.
R.C. 1335.01(A) provides:
“All deeds of gifts and conveyances of real or personal property made in trust for the exclusive use of the person making the same are void, but the creator of a trust may reserve to himself any use of power, beneficial or in trust, which he might lawfully grant to another, including the power to alter, amend, or revoke such trust, and such trust is valid as to all persons, except that any beneficial interest reserved to such creator may be reached by the creditors of such creator, and except that where the creator of such trust reserves to himself for his own benefit a power of revocation, a court, at the suit of any creditor of the creator, may compel the exercise of such power of revocation so reserved, to the same extent and under the same conditions that such creator could have exercised the same.” (Emphasis added.)