This is an appeal by plaintiffs Aubrey A. and Martha M. Barney, husband and wife, from a judgment in favor of defendant Roy E. Fye in an action to establish a-constructive trust. The case was consolidated for trial with another action brought against the same defendant by different plaintiffs, who have not appealed from the judgment.

The trial court filed a memorandum opinion which we believe fairly summarizes the evidence as shown by the record. We quote therefrom as follows:

We shall refer to other evidence in the course of this opinion.

Appellants’ basic contention, urged with great earnestness in their brief and upon the oral argument, is that the evidence was such as to indicate that both fraud and undue influence had been presumptively established and that the burden was upon defendant to go forward with proof sufficient to show fairness and lack of undue influence. Appellants contend that respondent has failed to sustain that burden.

Appellants argue correctly that all transactions between persons in confidential relationship, and particularly between husband and wife, by which one obtains an advantage from the other, are presumed to be entered into without consideration and under undue influence. They quote section 158 of the Civil Code, which states in part: “Either husband or wife may enter into any engagement or transaction with the other . . . respecting property, which either might if unmarried; subject, in transactions between themselves, to the general rules which control the actions of persons occupying confidential relations with each other, as defined by the title on trusts.” They also quote Civil Code, section 2235, which provides: “All transactions between a trustee and his beneficiary during the existence of the trust, or while the influence acquired by the trustee remains, by which he obtains any advantage from the beneficiary, are presumed to be entered into by the latter without sufficient consideration, and under undue influence.”

There can be no doubt as to the confidential relationship existing between respondent and his wife, that the real property described in the deed was her separate property, and that there was no consideration for the deed here under attack. This would, under the authorities, cause a presumption to arise that the deed was the result of fraud and undue influence. Under such circumstances the following rule stated in Azevedo v. Leavitt, 76 Cal.App.2d 321 , at page 324 [ 172 P.2d 704 ], is applicable:

The court found that the deed from Pearl T. Fye (the wife of respondent) to respondent “was made, executed and delivered by Pearl T. Fye to Roy E. Fye without any fraud, misrepresentations or inducements by Roy E. Fye to Pearl T. Fye,” and that respondent “did not make any representations to Pearl T. Fye that the deed executed by Pearl T. Fye . . . was to Aubrey A Barney and Martha M. Barney, nor did Pearl T. Fye intend to make any conveyance at that time to Aubrey A. Barney and Martha M. Barney.”

Appellants argue that the evidence is insufficient as a matter of law to sustain the findings. We are unable to agree with this contention. The record shows that most of the witnesses who testified for appellants were interested in setting aside the deed and in proving that Pearl T. Fye intended to change her will. The record shows also that Pearl T. Fye and respondent had been married for 33 years and that he had made a substantial contribution to the improvement of the property. The record shows also that there were no children of the marriage and that appellants were not related to Pearl T. Fye either by blood or marriage. The record shows also that nearly two years prior to the execution of the deed Pearl T. Fye had executed a will leaving all of said property to respondent and that said will had been admitted to probate. Respondent denied that he had at any time told Pearl T. Fye that the deed was a deed to appellants or that any instructions were given to him regarding the deed. And as pointed out by the trial court in the memorandum opinion, as hereinbefore set forth, Pearl Fye wrote a friendly letter to appellants just one week after the date of the execution of the deed, in which she made no mention of the fact that just one week earlier she had deeded the ranch to appellants. We believe that the court had a right to infer that if Pearl Fye believed she had deeded the ranch to appellants she would have mentioned it in the latter.

As has been stated in so many decisions, the trial judge is the judge of the weight of the evidence. The trial judge observes the witnesses and hears their testimony. He may take into consideration their interest in the case. He is not bound to accept their testimony at its face value unless there is no rational ground upon which it may be disbelieved. For an appellate tribunal to say upon the record in the instant case that the trial judge was not justified in determining that the presumption of fraud and undue influence was overcome by respondent, would in our opinion be a usurpation of the legitimate function of the trial court. The trial judge was no doubt satisfied that Pearl Fye was fully aware of the nature and effect of the transaction, that she wished respondent to have her property, that there was no fraud on the part of respondent and that there was no undue influence exerted upon Pearl Fye. These were all matters that it was the exclusive province of the trial court to decide, and there is ample evidence in the record to support the conclusion reached by the trial court.

No other points require discussion.

The judgment is affirmed.

Van Dyke, P. J., and Peek, J., concurred.