REVEREND ROBERT HENDLEY, JR., APPELLANT,

v.

FORREST E. PARSON, APPELLEE

BERANEK, Judge.

This appeal arises from a suit to invalidate an inter vivos gift made by an elderly decedent to her stepson. Appellant/plaintiff asserted that the decedent transferred a certain stock certificate as a result of undue influence growing out of a confidential relationship. Simply stated, the appellate attack is that the defendant’s version of how he received the stock certificate was so lacking in credibility as to be unacceptable and unbelievable as a matter of law. In short, the members of this appellate panel do not have the prerogative of judging the credibility of witnesses. Old Equity Life Insurance Company v. Levenson, 177 So. 2d 50 (Fla. 3rd DCA 1965), and In Re: Estate of Edmunds, 214 So. 2d 65 (Fla. 4th DCA 1968). The trial judge chose to believe the testimony of witnesses which appellant would have this court reject. We cannot conclude that the court committed reversible error in this regard, and the judgment below is thus affirmed.

AFFIRMED.

HERSEY, J., concurs.

LETTS, J., concurs specially.

LETTS, Judge,

concurring specially.

While I agree with the opinion, under the facts of this case, I can conceive of situations where the testimony might be so incredible as to fail to rebut the presumption of undue influence referred to in In Re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971). However, this is not one of them. Certainly I agree the evidence favoring the stepson is suspect and that I as a trial judge probably would have ruled the other way. Notwithstanding, the evidence is not incredible and we have no power to substitute our judgment for that of the trial court which apparently accepted the rebuttal testimony and found it to be sufficient.