The judgment should be affirmed, with costs.
The action was brought to have a deed of a farm canceled, made by George D. Farnsworth to the defendants Rudolph and wife, on the ground of incompetency, undue influence, want of execution and delivery, etc. The deed was executed during the evening of August 15, 1905, and Farnsworth died during the night of August 17, 1905. The farm was worth about $15,000. At the same time the deed was executed a will was made giving Mrs. Rudolph about $900 of personal property upon the farm. There was left undisposed of personal property worth about $38,000. Farnsworth had lived on the farm where he died all his life, and was seventy-three years old, He left no widow surviving, and no children or descend*679ants of children. His only heirs and next of kin were collateral relations. Rudolph began to work for Farnsworth on his farm twelve or fourteen years before Farnsworth’s death, and continued so to do until Farnsworth’s death. Rudolph was unmarried when he went there, and lived in Farnsworth’s family until he married his present wife about eight years before Farnsworth’s death ; then the Rudolphs went to live across the road and remained there until just before Farnsworth died. The wife of Farnsworth died about two yearn prior to Farnsworth’s death. After her death Farnsworth continued to live in his own home, taking a part at least of his meals at the Rudolphs. A short time before Farnsworth died the Rudolphs moved into Farnsworth’s house, and nursed and cared for him until he died. Farnsworth for many years had used intoxicating liquors to excess. He had syphilis at one time, and had dropsy at last. He was confined to his house for several weeks before he died, and for several days at the last to his bed. The deed and will were drawn by one Bohner, who took the acknowledgment of the deed, and with one Patrell witnessed the will, Bohner supervising its execution and Patrell being named as executor therein. Bohner was sent for by Mrs. Rudolph, and he gave evidence on the trial in great detail as to his interviews with Farnsworth relating to the preparation of the deed and will. The theory of the plaintiff was that Farnsworth’s mind became so weak the last weeks and days of his life that he was not competent to understand the deed and -will he made, and that in this condition he was at least unduly influenced to make them. I do not intend to go over the evidence or discuss the facts appearing in the record. The referee patiently listened to the evidence and saw the witnesses and, I assume, the Rudolphs also. He has written a lengthy report, referring to more or less of the evidence, and has come to the conclusion that the deed should be set aside because, as he states, “ I am forced to the conclusion that at the time of the execution of this deed in question the mental faculties of the grantor were such that he was absolutely and completely unable to comprehend the nature of the transaction, and did not have sufficient capacity to comprehend and collect in his mind the particulars or elements of the business to be transacted, and to hold them in his mind sufficient length of time to perceive at least their obvious rela*680tions to each other or to be able to form a rational judgment in relation td them.”
It is evident that there was testimony to support this finding and conclusion. The evidence was conflicting and the referee could have found support therein if he had arrived at a contrary conclusion. He had a better opportunity than the court of appeal has to ascertain the truth.
The appeal is purely on the facts. No questions of law are raised. We should not reverse on the facts. If referees are to be appointed to hear, try and determine such cases as this, we should let them perform their- duty, and not interfere and set asidé their decisions where the evidence is so conflicting as it is here.
Judgment reversed and new trial ordered before another referee,' with costs to appellants to abide event, upon questions of law and fact.