department in the exercise of its powers; | but the effect of the writ prayed for in this case will not be to control those vested with legislative power in this state in the determination of what they shall submit to the people, or whether they shall submit anything, nor will it in any way interfere with such submission. That is a question which must be determined by those in whom the power has been vested. When the respondent has been directed to proceed and to determine the sufficiency of the petitions filed, the effect of such order will not be that a vote upon the measure to be referred shall be had or shall not be had; nor will the writ in any way influence or control the determination of that question. That question has been determined by the people themselves by having complied with the constitutional and statutory provisions for referring a measure, or by their failure to comply therewith. Respondent is but commanded to perform a plain, statutory duty. been able to find, no case wherein it was sought to compel a Secretary of State to discharge duties in connection with the submission of a constitutional amendment, or other question authorized to be voted upon by the people, where such duties were imposed upon him by constitutional provisions or by statute, and he had refused to act, that the writ was not allowed. We conclude that the court has jurisdiction of this proceeding, and the peremptory writ is awarded. All the Justices concur. ALCORN et al. v. DENNIS. (Supreme Court of Oklahoma. Nov. 9, 1999.) 1. PLEADING (§ 236*)-APPEAL AND ERROR (§ 959*) - DISCRETION OF TRIAL COURTAMENDMENT OF PLEADINGS. To permit amendments when not changing the cause of action rests within the sound discretion of the trial court, and will not be disturbed on appeal unless it affirmatively appears that its exercise has operated to the prejudice of the rights of the complaining party. [Ed. Note.-For other cases, see Pleading, and Error, Cent. Dig. §§ 3825-3833; Dec. Dig. Cent. Dig. § 601; Dec. Dig. § 236;* Appeal § 959.*] 2. NEW TRIAL (§ 26*)-OBJECTIONS AT TRIAL -NECESSITY-MODE OF TRIAL. A party, prior to the beginning of a trial, having duly waived a jury, and during such trial an amendment at the instance of the opposite party having been permitted, no request by either party having been made to the court for the withdrawal of the waiver as to trial by jury, but the trial having proceeded to judgment, such party will not be thereafter heard to complain for the first time in his motion for a new trial that he had been thereby deprived of a right of trial by a jury. [Ed. Note.-For other cases, see New Trial, Cent. Dig. § 39; Dec. Dig. § 26.*] 3. APPEAL AND ERROR ($ 1011*) - QUESTIONS OF FACT-FINDINGS OF COURT-CONCLU SIVENESS. There is not an entire absence of authorities which, by analogy, support the conclusion we reach upon this question. In Kimberly et al. v. Morris et al., 87 Tex. 637, 31 S. W. 808, the statute made it the duty of the board of county commissioners to any county of the state of Texas, upon petition of 250 voters of the county, to order an election to determine whether the sale of intoxicating liquors should be prohibited in such county. Respondents, upon the filing of such petition, refused to call the election. A writ of mandamus was awarded to compel them to do so. The Constitution of the state of North Dakota declares that the powers and duties of the Secretary of State shall be as prescribed by law. One of the duties imposed by the statutes of that state upon the Secretary of State is to certify to the county auditors any proposed constitutional amendment or other questions to be submitted to the people for their vote thereon. The Legislature, by resolution, submitted the question whether a constitutional convention should be called at some future date for the purpose of revising the Constitution of the state. The Secretary of State, upon refusing to certify the proposition submitted by the Legislature, was compelled to do so by mandamus. State ex rel. Wineman v. Dahl, 6 N. D. 81, 68 N. W. 418, 24 L. R. A. 97. Commonwealth v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L. R. A. 568, was an application for a writ of mandamus to compel the respondent to submit a proposed constitutional amendment which he had refused, upon several grounds, to submit. The writ was allowed. State ex rel. Morris V. Mason, Secretary of State, 43 La. Ann. 590, 9 South. 776, was a similar case with a similar result. There has been cited, and after a careful examination of authorities we have Where the testimony is oral and conflicting, and the finding of the court is general, such finding is the finding of every special thing necessary to sustain the general finding, and is conclusive on this court on all questions of doubtful and disputed fact. (a) Where special findings of fact are made, and these findings are based on oral testimony, on review here, such findings are conclusive upon any disputed or doubtful questions of fact. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. § 1011.*] (Syllabus by the Court.) WILLIAMS, J. 1. The defendant in error, as plaintiff, declared in two counts. The first was on a promissory note wherein it was alleged that the interest was to be paid semiannually. The purported copy of such note attached to the petition as an exhibit did not contain such clause, and after the trial had been begun, and objection was made by the plaintiffs in error (defendants below) to the introduction of the original note on account of a variance, the plaintiff (defendant in error here) was permitted to amend. To permit amendments when not changing the cause of action rests within the sound discretion of the trial court and will not be disturbed on appeal unless it affirmatively appears that its exercise has been abused to the prejudice of the complaining party. Swope v. Burnham, 6 Okl. 736, 52 Pac. 924; Tecumseh State Bank v. Maddox, 4 Okl. 583, 46 Pac. 563; Armour Packing Co. v. Orrick, 4 Okl. 661, 46 Pac. 573; Church v. A., T. & S. F. R. Co., 1 Okl. 44, 29 Pac. 530; El Reno Electric Light & Telephone Co. v. Jennison, 5 Okl. 759, 50 Pac. 144; Lookabaugh v. La Vance, 6 Okl. 358, 49 Pac. 65; Limerick v. Lee, 17 Okl. 165, 87 Pac. 859; Piper v. Choctaw Northern Townsite & Improvement Co., 16 Okl. 436, 85 Pac. 965; Lookabaugh v. Bowmaker, 21 Okl. 489, 96 Pac. 651; Mulhall v. | Mulhall, 3 Okl. 304, 41 Pac. 109; section 4343 (c. 66, art. 8, § 145) Wilson's Rev. & Ann. St. 1903; Rogers v. Hodgson, 46 Kan. 276, 26 Pac. 732; Teberg v. Swenson, 32 Kan. 224, 4 Pac. 83. 2. The plaintiffs in error not having asked permission to withdraw their waiver as to trial by jury, but having proceeded under the original waiver after the amendment had been permitted, will not be heard to complain for the first time in their motion for new trial that they were thereby deprived of the right of trial by jury. However, there are authorities that hold that, when a jury has been waived as to the trial of a cause, such waiver applies to all issues not only then existing, but also to those raised by subsequent pleadings. Thompson v. King, 173 Mass. 439, 53 N. E. 910; Dennie v. Williams, 135 Mass. 28; Lanahan v. Heaver, 77 Md. 605, 26 Atl. 866, 20 L. R. A. 759; Tracy v. Falvey, 102 App. Div. 585, 92 N. Y. Supp. 625; Collins v. Young, 118 N. C. 265, 23 S. E. 1005; Keystone Driller Co. v. Worth, 117 N. C. 515, 23 S. E. 427; Perry v. Tupper, 77 N. C. 413; Hauser v. Metzger, 1 Cin. R. (Ohio) 164; Ferrea v. Chabot, 121 Cal. 233, 53 Pac. 689, 1092; Hartford Ins. Co. v. Redding, 47 Fla. 228, 37 South. 62, 67 L. R. A. 518, 110 Am. St. Rep. 118; Wittenberg v. Onsgard, 78 Minn. 342, 81 N. W. 14, 47 L. R. A. 141. The right to make a testamentary disposiand the Legislature may withhold or regulate tion of property depends entirely on statute, the right, as it pleases, and make compliance with the rules touching execution and authentication of wills mandatory. [Ed. Note. For other cases, see Wills, Cent. Dig. § 1; Dec. Dig. § 1.*] 2. WILLS (§ 215*)-PROBATE PROCEEDINGSSOLE QUESTION FOR DETERMINATION. strued liberally to give effect to testator's inWhile a will after probate must be contention, on the application for probate, the sole inquiry is whether the requirements of the statute have been complied with, and the courts of the testator, however clearly manifested by cannot out of regard for the supposed intention attendant circumstances, adopt a rule which would open the way for the same frauds the statute was designed to prevent. [Ed. Note. For other cases, see Wills, Cent. Dig. § 523; Dec. Dig. § 215.*] 3. WILLS (§ 108*)-EXECUTION-NECESSITY OF OBSERVING STATUTORY FORMALITIES. The statutory formalities of execution, such as the place of testator's signature, or the fact that he signed or made acknowledgment in presence of witnesses, or made publication, or that the witnesses properly signed in his presence, and in presence of each other and at his request, stand as of equal importance, and must be observed. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 249, 250; Dec. Dig. § 108.*] 4. WILLS (§ 386*)-CONTEST-REVIEW-CONFLICTING EVIDENCE. If conflicting evidence in a will contest could have been submitted to a jury under Rev. Codes, § 7397, findings on such evidence by the court are conclusive on appeal. [Ed. Note. For other cases, see Wills, Cent. Dig. § 859; Dec. Dig. § 386.*] 5. APPEAL AND ERROR (§ 1008*)-REVIEWCREDIBILITY OF TESTIMONY. exclusively for the trial court in a case subThe credibility of testimony is a question mitted to it for determination without a jury. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3955: Dec. Dig. § 1008.*] *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes Appeal from District Court, Yellowstone | The only evidence heard was that of Fenton County; Sydney Fox, Judge. and the two subscribing witnesses. What occurred at the time is stated by them substantially as follows: In the matter of the estate of Horace A. Noyes, deceased. J. S. Noyes, as plaintiff, appeared and contested a writing offered by Sarah Gerard, defendant, for probate as decedent's last will. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed. W. M. Johnston, for appellant. Chas. A. Taylor and Harry L. Wilson, for respondent. BRANTLY, C. J. Horace A. Noyes died on or about January 16, 1909, at Laurel, in Yellowstone county, leaving an estate therein consisting of real and personal property. On January 25, 1909, Sarah Gerard, the defendant, filed a petition in the district court of Yellowstone county, asking that a writing attached thereto, and purporting to be the last will and testament of Horace A. Noyes, be admitted to probate. By the terms of the writing the defendant is given the whole of the estate of the deceased, subject to the claim of creditors and to the payment of $10 to each of several legatees mentioned by name, being a niece, three sisters and a brother. One Edward L. Fenton was named as executor, and the defendant prayed that letters testamentary be issued to him. J. S. Noyes, the plaintiff, brother of the deceased, appeared and contested the probate of the writing as a will, alleging as grounds therefor, among other things, that the subscription of his name to the instrument by the testator was not made in the presence of the attesting witnesses; that it was not acknowledged by the testator to the witnesses, or either of them, as made by his authority; that the testator did not at the time of subscribing his name, or at any time or at all, declare to the attesting witnesses, or either of them, that the instrument was his will; and that neither of said witnesses signed his name as a witness to the instrument at the request of testator. The defendant filed her answer, denying specifically all of these allegations. The issues thus made were tried by the court sitting without a jury, and resolved in favor of the plaintiff. Judgment was entered accordingly. The defendant has appealed from the judgment and an order denying her a new trial. The questions submitted for decision arise upon defendant's assignment that the evidence is insufficient to sustain the findings, and may be stated as follows: (1) Did the deceased at the time of signing the instrument in question publish it as his last will and testament, as required by the laws of Montana? (2) Did the witnesses, when they signed as such, do so at the request of the deceased? The instrument bears the signature of the deceased, attested by two witnesses, but without an attestation clause. It was written by Fenton on May 4, 1907, at the request of Noyes, who was confined to his bed Fenton stated: He was postmaster at Laurel, the village where Noyes resided. He was sent for by Noyes, who was then confined to his bed in a room at the rear of his saloon. When he arrived, he found Conant, one of the subscribing witnesses, with Noyes. Noyes was then perfectly rational, and understood what was going on about him. After some conversation between Fenton and Noyes, the latter told Fenton that he had an old will in his trunk, which he directed Fenton to get, because he desired to have it changed in some particulars, and for this purpose desired a new one drawn. This paper purported to be a holographic will. Fenton then went to the post office, and, after having procured writing materials, wrote the will as directed by Noyes. During the time the directions were being given different persons came in and went out of the room, but who they were or whether any one was present he did not remember. After he finished the writing, he read it to Noyes. He could not say who was then present. After the reading was finished, but before Noyes signed, he called Klamer, one of the subscribing witnesses, from the saloon, and told him he desired him to sign the will as a witness. This information was given the witness as he entered the room from the saloon. Conant was then present. Noyes signed after Klamer came in, having raised himself in bed for that purpose. It was then attested by Conant and Klamer. The room was in size about 12 by 14 feet, and Noyes could hear all that was said. After the signatures were attached, both of the papers were intrusted to Fenton, who thereafter kept them until Noyes' death. Conant signed first, and Klamer immediately afterwards. On cross-examination the witness stated: He did not think both witnesses were in the room when he read the will. Noyes did not speak to either of them during this time, nor personally request either to sign. The request was made by Fenton. He told Noyes that two witnesses were required, and then requested Conant and Klamer to sign. Klamer stated: He remembered signing what he was informed by Fenton was Noyes' will in the back room of the saloon. He identified the paper in controversy as the one witnessed by him in the presence of Noyes, but knew nothing of its contents. He saw Noyes sign it. Conant then signed it; the witness signing immediately afterwards. Noyes seemed to be perfectly rational, and was not laboring under any restraint or undue influence of any kind. Witness was called into the room by Fenton from the rear of the saloon where he was then sitting. Fenton beckoned him into the room where in Noyes' presence if he would witness the will. The door leading into the room from the saloon was open. Conant was then present. Witness supposed Noyes could hear all that was said, since he could hear well, and was wide awake and in full control of his faculties. Though the witness talked with Noyes immediately afterwards, nothing was said by either of them about the fact that Noyes had just made a will or as to the contents of it. Nothing was said about the will whatever while he was in the room, other than what Fenton said when he requested the witness to attest it. He knew that he was witnessing a will only by what Fenton said to him. Questioned further, the witness stated he could not say definitely whether, when Fenton informed him that it was desired that he should act as a witness, he was in the saloon or in the room where Noyes was; nor could he say whether Noyes heard what was said by Fenton. Nothing was said about the will while he was engaged in witnessing it. not at the time he signed see Noyes' signature on the paper, because of the way in which it was folded. Several questions were put to him on cross-examination, with the apparent purpose of laying a foundation for impeachment; but no other evidence was offered on behalf of either party. Section 4726, Rev. Codes, so far as pertinent here, provides: "Every will, other than a nuncupative will, must be in writing; and every will, other than a holographic will, and a nuncupative will, must be executed and attested as follows: (3) The testator must, at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will; and (4) There must be two attesting witnesses, each of whom must sign his name as a witness, at the end of the will, at the testator's request, and in his presence." The right to make a testamentary disposition of property is not an inherent right; nor is it a right guaranteed by the fundamental law. Its exercise to any extent depends entirely upon the consent of the Legislature, as expressed in the statute enacted on the subject. It can withhold or grant the right, and, if it grants it, it may make its exercise subject to such regulations and requirements as it pleases. It may declare the rules which must be observed, touching the execution and authentication of the instruments necessary to indicate the testator's intention and make a compliance with them mandatory. In re Walker's Estate, 110 Cal. 387, 42 Pac. 815, 30 L. R. A. 460, 52 Am. St. Rep. 104. In Re O'Neil, 91 N. Y. 521, it was said: "While the primary rule governing the interpretation of wills, when admitted to probate, recognizes and endeavors to carry out the intention of the testator, that rule cannot be invoked in the construction of the statute regulating their execution. In the latter case courts do not consider the intention of the testator, but that of the Legislature. In considering the question stated upon authority, some cases are found which apparently sustain the contention of appellant's counsel. In all of them, however, there was a failure to observe the rules of construction which we consider controlling. We think, however, that the weight of authority favors the theory that the statute fixes an inflexible rule by which to determine the proper execution of all testamentary instruments." This was said in discussing a will in the execution of which the testator and witnesses had failed to subscribe at the end, as required by the statute. In Re Walker's Estate, supra, the Supreme Court of California, after stating that the observance Conant stated: He knew Noyes. He attached his signature to the paper purporting to be the will in controversy. He did so at the request of Fenton. Fenton, Klamer, and he were present. Noyes said nothing about the character of the paper. Witness did not hear Fenton ask Klamer to sign as a witHe himself signed first, followed by Klamer. The paper was at the time of signing so folded that he could not see the signature of Noyes. He learned nothing of the nature of the paper until after the death of Noyes. Fenton merely asked him to sign the paper as a witness, without stating to him the nature of it. He did not know its nature. He could not say whether he saw Noyes sign or not, and, when he first saw the paper, it was in Fenton's possession. He could not say that he saw it in Noyes' possession at all. He was in and out of the room during the time Fenton was present, engaged in preparing Noyes for removal to a hospital at Billings. He did not remember seeing Fenton help Noyes to a sitting posture to sign the paper, and did not remember having heard Fenton ask Klamer to witness Noyes' will. Though present when Fenton first came into the room, he did not hear Noyes request Fenton to draw his will. He did not see Fenton get the old will from the trunk. Beyond a surmise, based upon the fact that Noyes was sick, that the paper witnessed was probably a will, he did not, in fact, know what it was. He had called on Noyes that morning, and, at his request, had remained to wash and prepare him for removal to the hospital. Fenton and Klamer entered the room together; of the requirements of the statute is a preFenton then having the papers, and remarking: "June [referring to Noyes] has got some papers here, and I wish you to sign as witness.' This was said in Klamer's presence. He could not say whether this requisite to the effective exercise of the testamentary right, said: "It is not for the courts to say that these requirements, or any of them, are mere formalities, which may be waived without impairing the status Case, 1 L. R. 189; Haynes v. Haynes, 33 Ohio St. 615, 31 Am. Rep. 579; Hays v. Harden, 6 Pa. 409; Glancy v. Glancy, 17 Ohio St. 134; Luper v. Werts, 19 Or. 122, 23 Pac. 850; Matter of Whitney, 153 N. Y. 259, 47 N. E. 272, 60 Am. St. Rep. 616; Richardson v. Orth, 40 Or. 252, 66 Pac. 926; Ludlow v. Ludlow, 36 N. J. Eq. 597; 3 Am. & Eng. Ency. of Law (2d Ed.] 574. Counsel for defendant has cited many cases wherein wills were admitted to probate under particular circumstances. But in each case the facts were such as to justify the conclusion that the statutory re say that a mode of execution or authentica- | signed or made acknowledgment in the prestion, other than that prescribed by law, sub-ence of the witnesses, or that he made pubserves the same purpose, and is equally effi- | lication, or that the witnesses have properly cient to validate the instrument. The leg- signed in his presence, and in the presence islative mandates are supreme, and there is of each other and at his request. All of no right to make testamentary disposition these formalities stand as of equal importexcept upon compliance with those man-ance, and all must be observed. Dallow's dates. It may be freely conceded that the question under consideration is of a nature purely technical, but it is to be remembered that the whole subject-matter of the execution and authentication of wills is technical, and nothing else; and it must not be forgotten that the technicalities are those which the lawmaking power has the right to impose, and has imposed, upon the maker of a will." The purpose of the formalities prescribed is to prevent simulated and fraudulent writings from being probated and used as genuine. While the application of the strict rule of construction may sometimes defeat the intention of the testator as mani-quirements had been substantially complied fested by an imperfectly executed and authenticated writing, yet in the long run such statutes tend to promote justice, by lessening, so far as possible, the opportunity for fraud, which history and experience have demonstrated to be feasible and measurably safe in the absence of them. Estate of Seaman, 146 Cal. 455, 80 Pac. 700, 106 Am. St. Rep. 53. After the writing is shown to have been executed and authenticated by observance of the technical requirements which the legislature has imposed, then the instrument will be construed liberally in order to give effect to the testator's intention. Upon the application for probate, however, the sole inquiry about which the court is concerned is whether these requirements have been complied with. The courts may not, therefore, out of regard for the supposed intention of the testator, however clearly it may be manifested by the attendant circumstances, adopt a rule which would open the way for the same frauds which the statute was designed to prevent. The restrictions made by it are reasonable and easily understood, and, as experience has shown, it is far safer for society that a rule be adopted that requires a strict compliance with them, and, as as a consequence, that occasionally an honest attempt to execute a will be defeated, than that the protections thus thrown about the testator should be disregarded because of an undue respect for his intentions, and the way be left open for the multitude of frauds and perjuries which would result. Since the right to make testamentary disposition is dependent upon the will of the Legislature, it is no hardship upon any one that the mode and formalities by which it may be effectively done are made mandatory by the same power. This rule of interpretation is recognized and applied by the courts generally, both in England and in this country, whether the particular formality involved refers to the place of the sig with. The case of Coffin v. Coffin, 23 N. Y. 9, 80 Am. Dec. 235, is an illustration. There one of the questions was whether one of the witnesses had signed at the testator's request. One of the witnesses asked the testator in the presence of the other: "Do you request me to sign this paper as your will as a witness?" The testator answered in the affirmative. This was held a request to both witnesses, and a sufficient publication of the will. So, again, in Trustees v. Calhoun, 25 N. Y. 422, it was held that where one of the witnesses asked the other in the presence of the testator to sign as a witness, after stating that the paper she was called to sign was the will, it was held that this was sufficient to show a publication, even though the latter witness stated that she did not think that the testator, being deaf, heard all that was said; the other subscribing witness having testified that the testator had fully explained to her the purpose for which she had been called. Again, in Re Johnson, 152 Cal. 779, 93 Pac. 1015, it was held that it was not necessary that it be made to appear that a testatrix upon executing her will had expressly declared to the subscribing witnesses that the document executed was her will and expressly requested them to attest it, but that it was sufficient if by her words or her conduct at the time she conveyed to them the information that the document was her will, and that she desired them to subscribe it as witnesses. The same rule was recognized and applied by this court in the case of In re Miller's Estate, 37 Mont. 545, 97 Pac. 935. There is no fault to be found with the rule thus declared. The condition presented in this case, however, does not permit its application. However much disposed we might be to find for defendant and uphold the will in controversy here, if we were authorized to disregard the findings of the district court, and make independent findings, upon the |