ON PETITION FOR REHEARING. The court refused to give instruction 13, tendered by appellants, and which is as follows: "One of the witnesses to the execution of the will has not testified concerning the same. So far as appears in this trial, the testimony of this witness was equally available and could have been procured by either of the parties to this cause. Therefore, you must not draw any inference for one party or against the other because this witness has not been called to testify at this trial."
The will in question was prepared by one of appellants' attorneys in his office in Decatur county. He dictated the will to his stenographer, Flora Osting, who also signed the will 8. as a witness to its execution. There is no evidence that appellees or either of their attorneys knew Miss Osting or had any knowledge as to where she resided. Our attention has not been called to any evidence which would tend to show where she resided, other than what might be inferred from the testimony of the attorney who prepared the will. He testified that, at the time of the trial, Miss Osting was at Culver, Indiana; that he saw her there in July previous to the trial and talked to her, and that no effort was made to take her deposition or to have her present as a witness. Assuming, without deciding, that the tendered instruction would have been proper in a case where the absent witness was equally available, and could have been procured by either of the parties, there was no error in refusing *Page 309 the tendered instruction, since the evidence does not show the absent witness was equally available to the parties.
Rehearing denied.
Dausman, J., absent.