ON PETITION FOR REHEARING. Appellees say that appellants tendered instructions upon the issue of undue influence in the same series and under the same tender as the instruction by which the trial court was 13, 14. asked to withdraw that issue from the jury, and thereby invited the court to commit the error, if any, in refusing to withdraw such issue, and in submitting it to the jury. But neither the appellants nor the appellees, in their briefs on the original hearing, set out any instructions given at the request of appellants which related to the issue of undue influence, nor any request by appellants to give the instruction No. 2 as one of a series of instructions asked, nor did appellees in their statement of the record, points and authorities, or elsewhere *Page 356 in their said brief, so far as we can ascertain by a careful re-examination thereof, urge or even suggest the point on which they now rely as cause for a rehearing. It is only those points presented by the original briefs which are available on petition for rehearing. And where the statement of the record in appellant's brief, as amended and supplemented by the statement in appellee's brief, failed to show that a request for instructions relating to the issue of undue influence was made, or that the instructions so requested were given, this court will not refer back to the transcript on petition for a rehearing to see whether or not an error in refusing to give an instruction was waived by reason of a request for instructions not set out in the briefs. Rules 22 and 23 Supreme Court. Blough v. Parry (1896), 144 Ind. 463, 483, 43 N.E. 560; Milburn v. Phillips (1893), 136 Ind. 680, 699, 36 N.E. 360; City of Evansville v.Senhenn (1897), 151 Ind. 42, 62, 51 N.E. 88, 41 L.R.A. 728, 68 Am. St. 218.
After a careful reconsideration, the court is convinced that the evidence did not justify submitting the issue of undue influence to the jury. The existence of a relation of 15. confidence between the testator and a son who was made the executor as well as a beneficiary under a will that had been executed when he was not present, did not constitute evidence that the execution of the will was procured by undue influence. Scarbrough v. Scarbrough (1913), 185 Ala. 468, 64 So. 105; In re Purcell's Estate (1912), 164 Cal. 300,128 P. 932; Snodgrass v. Smith (1908), 42 Col. 60, 94 P. 312, 15 Ann. Cas. 548; McCune v. Reynolds (1919), 288 Ill. 188, 123 N.E. 317; Succession of Jones (1907), 120 La. 986, 45 So. 965;In re Turner's Will (1908), 51 Or. 1, 93 P. 461; In reCook's Estate (1918), 71 Okla. 94, 175 P. 507.
The motion to dismiss the appeal was on the ground *Page 357 that the assignment of errors failed to name as appellees certain persons who, together with appellants, were jointly made 16. defendants to the action, as being, like appellants and appellees, "legatees under the provisions of said alleged last will and testament," as well as constituting, together with appellants and appellees, "all the heirs at law of said" testator. No issue was joined as between them and appellants, they having merely filed answers admitting that the allegations of the complaint were true and consenting that the will be set aside. Persons who were sued jointly as defendants, and against whom judgment was rendered jointly, granting all the relief prayed for in the complaint, but who filed no pleadings whatever as against each other, cannot be deemed adverse parties so as to require that part of them, in appealing from such judgment, shall name the others as appellees, merely because the latter filed a disclaimer of adverse interest as against the plaintiff. No judgment having been rendered in their favor against appellants, they had no such legal interest adverse to appellants as could require them to be joined as appellees in an appeal from the judgment recovered by the plaintiffs below. Clements v. Davis (1900), 155 Ind. 624, 626, 57 N.E. 905.
The petition for a rehearing is overruled.