(dissenting). I must respectfully dissent from the conclusions reached by my colleagues on the basis of which they reverse the judgment entered by the trial judge.
Contrary to their determination, it is my opinion that there not only was sufficient credible evidence in the record to warrant the trial judge’s findings, but the majority, I fear, has substituted its judgment and findings for that of the trial judge without a proper foundation for doing so and by exceeding the scope of its review. State v. Johnson, 43 N. J. 146 (1964).
*449The evidence on which the trial judge made his findings with one exception consisted of the testimony of witnesses having a personal interest in the outcome of the litigation, namely, brothers, sisters and a spouse of one sister of decedent on the one side, and defendant, husband of decedent, on the other side. The exception was Mrs. Marie Ilaciti, an aunt of decedent, who testified that decedent on numerous occasions had told her that the house would go back to her sisters and brothers. On one occasion defendant had walked in during such a conversation and affirmatively stated that he did not want the house.
The majority says:
It may be that decedent intended her brothers and sisters to have the family home upon her death. But we find nothing in the record from which it can reasonably be inferred that decedent was induced not to make a will because of what her husband had said or that she was misled by him in any way. The most that can be derived from the record is an indication by defendant that it did not matter to him if his wife wished to leave the property to her brothers or sisters.
To the contrary, inherent in the judge’s findings are that decedent influenced her mother, who was the mother of plaintiffs, to leave the house to her; that the mother of decedent believed that ultimately plaintiffs would receive the property upon the death of decedent before them; that plaintiffs were prepared to take action against decedent after their mother’s death to set aside the testamentary gift to decedent because of undue influence, and that no such action was brought because of the assurances given by decedent and defendant that upon decedent’s death the house would go to her brothers and sisters. The testimony of plaintiffs’ witnesses was corroborated by the admitted attempt of defendant to purchase the house after his wife died by offering to pay $5,000 for it. In addition, defendant failed to categorically deny the various statements which the witnesses testified were made by him. These statements attributed to defendant were:
*450(1) To Mrs. Eueeello — “I don’t want the house. What am I going to do with it?”
(2) To Mrs. Golden — “You don’t have to worry. The house will he back to you.”
(3) To Mrs. Raciti — “I don’t want the house.”
In a case such as the instant one, the “feel” that the judge obtains from hearing the testimony, and his ability to assess the credibility, sincerity and veracity of the witnesses, must play a major role in the composition of his findings, which the appellate courts are constrained to respect. If the findings and result rest upon sufficient credible evidence, the appellate court must not disturb the result “even though it has the feeling it might have reached a different conclusion were it the trial tribunal.” State v. Johnson, supra at 161-162.
I agree with the majority that a constructive trust must be established “by clear, definite, unequivocal and satisfactory evidence.” However, that does not mean that there can’t be contradictory evidence or that if there is contradictory evidence it is impossible for the trier of facts to find that a constructive trust has been established. I suspect that the majority’s failure to accord the trial judge’s findings the deference that they deserve arises from its lack of appreciation of all the circumstances, including those which might be inferred from the testimony as well as the relationship of the parties. Such circumstances include what has* already been stated concerning the forebearance of plaintiffs to institute proceedings during the life of decedent to set aside their mother’s devise of the house to decedent; defendant’s presence when his wife reassured her siblings as to the house, as well as his own assurances; defendant’s offer to pay for the house after his wife died; the apparent lack of knowledge of all the parties as to the legal formalities necessary to pass title by will or through intestacy; the natural conversations which would have taken place between decedent and defendant concerning the house; decedent’s actions in procuring the execution of the will devising the *451house to her to the exclusion of her sisters and brothers in the light of the apparent close relationship among all the children and their mother; the fact that defendant was 80 years old at the time of his testimony, and the length of time that he had been married to decedent.
The majority also discounts the applicability of Amherst College v. Ritch, 151 N. Y. 282, 45 N. E. 876 (Ct. App. 1897), apparently because it overlooks the fact that plaintiffs were induced by decedent and defendant to withhold action after decedent’s mother died. All of the testimony except the weak denial of the husband defendant, even in the face of his offer to pay plaintiffs, warranted the trial judge’s concluding that not alone did defendant assure decedent that he would see to it that the property would go to plaintiffs, but that he also gave the same assurances to plaintiffs.
The majority asserts that defendant did not “disavow any intent to retain the property after [his wife’s] death,’ notwithstanding that remark by the trial judge in his letter opinion.” Such conclusion is erroneous for two reasons: first, because my colleagues refuse to give reasonable effect (reasonable inferences) to the actual words uttered by defendant, and second, there need not be an actual “commitment on defendant’s part to relinquish his interest in the property upon his wife’s death,” as implied by the majority opinion. The trial judge’s decision may be posited upon the misrepresentations and inducement that defendant’s statements created by inference as well as expressly.
For the foregoing reasons I would affirm.