*496 Mr. Justice Peckham delivered the opin- | tiff, was a citizen of the United States and ion of the court: was a bona fide resident of the territory of Arizona. And should the evidence in this case fail to establish that, at the time of the cutting and removal of said timber, the said Daniel D. Ross was a citizen of the United States, and a bona fide resident of the territory of Arizona, you must find for the plaintiff, without regard to the mineral or nonmineral character of the land." The government has brought this case here by writ of error for the purpose of reviewing a judgment of the supreme court of Arizona, aflirming a judgment entered upon the verdict of a jury in favor of the defendant. The action was to recover $183,000, being the alleged value of about 5,900,000 feet of timber, said to have been wrongfully cut and taken by the defendant from the surveyed and unsurveyed public lands of the United States in a cañon in the Chiricahua mountains, 60 miles from the town of Wilcox on the South-An appeal from the judgment entered upon ern Pacific Railroad in the territory of Ariz ona. The jury found a verdict for the defend-* ant, after which a motion for a new trial was made and denied by the trial judge. the verdict was then taken to the supreme court of the territory, where it was affirmed. The answer joined issue upon the allega- It thus appears that the judge held, and tions of the complaint, and also set up that so charged the jury, that Ross, who did the the timber was cut by one Ross from public cutting, must have been, not only a bona fide mineral lands of the plaintiff, and was so cut resident of the territory, but also a citizen and removed from those lands under the au- of the United States, and if he were not, then thority of the act of Congress of June 3, the plaintiff was entitled to a verdict. The 1878 (20 Stat. at L. 88, chap. 150) the ma- government now says there was no evidence terial portion of which reads as follows: in the case that Ross was a citizen of the "That all citizens of the United States and United States, nor any tending to show he other persons, bona fide residents of the was a bona fide resident of Arizona at the state of Colorado, or Nevada, or either of time the cutting was done, and that unless the territories of New Mexico, Arizona, Ross were such citizen, and also a bona fide Utah, Wyoming, Dakota, Idaho, or Montana, resident of the territory, his cutting of the and all other mineral districts of the United timber was wrongful, and the government States, shall be, and are hereby, authorized was entitled to a verdict. The verdict must and permitted to fell and remove, for build- be regarded as a finding that Ross was a citing, agriculture, mining, or other domestic izen of the United States and a bona fide purposes, any timber or other trees grow resident of the territory when the cutting ing or being on the public lands, said lands was done. If he were, there is no question being mineral, and not subject to entry un-made about his right to cut. The motion on der existing laws of the United States, ex- the part of the government at the close of cept for mineral entry, in either of said the evidence, to direct a verdict for the gov states, territories, or districts of which such ernment upon all the evidence, and the excitizens or persons may be at the time bona ception to the refusal of the court so to do, fide residents, subject to such rules and reg-would raise the question whether there was ulations as the Secretary of the Interior may prescribe for the protection of the timber and of the undergrowth growing upon such lands, and for other purposes: Provided, The provisions of this act shall not extend to railroad corporations." The answer further set up that Ross had good right and lawful authority to cut and remove the timber, and that it was cut and removed from such lands in good faith, and at the time that he so cut and removed the timber Ross was a citizen of the United States of America and a bona fide resident of the territory of Arizona. A trial was had in the district court before a judge and jury, and upon the close of the evidence counsel for the government made a motion that the court instruct the jury to find on the evidence a verdict for the government, which was refused and an exception taken. Among other things the court charged the jury as follows: "It is also incumbent upon the defendant, in order to avail itself of the permission granted by said act of June 3d, 1878, and In order to justify its purchase and consumption of said timber, to show by a preponderance of the evidence that Daniel D. Ross, at the time of the cutting and removal of said timber from the lands of the plain any evidence of the citizenship of Ross and of his residence in the territory when the cutting was done, upon which to base a verdict, were it not that the bill of exceptionslacks an essential statement for that pur pose. It does not appear from the bill that it contains all the evidence given upon the trial. It may be that it does, but we cannot, in the absence of any statement in the bill to that effect, presume it does for the purpose of reversing the judgment herein, upon the assumption that the proper construction of the act of Congress requires such citizenship as well as residence. When this court is asked to reverse a judgment entered upon a verdict of a jury, upon a writ of error, upon the ground that there is absolutely no evidence to sustain it, and the court should have directed a verdict, the bill of exceptions must embody a statement, or there must be a stipulation of counsel de I claring that the bill contains all the evidence given upon the trial, so that the record shall affirmatively show the fact. Russell v. Ely, 2 Black, 575, 580, 17 L. ed. 258, 260. In the cited case the court, after remarking that the bill of exceptions did not purport to give all that a certain witness had testified to, said that, according to a well-known rule, the court, under such a condition of the rec *499 The judgment must therefore be affirmed. ord, was bound to presume that there was that Ross was a citizen and a bona fide resthat in the witness's testimony which justi-ident, it is admitted that the verdict could fied the instruction. It was then added by not be disturbed by this court. There may the court: What purports to be the entire have been evidence upon both propositions deposition of Baker is sent up by the clerk sufficient to sustain the verdict. of the district court, and is printed in the record before us, and if properly before us might sustain the exception. But this deposition is not incorporated into the bill of exceptions, nor so referred to in it as to be made a part of the record of the case. It is only a useless encumbrance of the transcript, and an expense to the litigating parties." The court thus refused to look at the deposition, which purported to be the entire deposition of the witness, because it was not made a part of the bill of exceptions. In this case there is nothing whatever in the bill of exceptions to show that the evidence contained therein is all the evidence that was given on the trial, and we cannot presume, for the purpose of reversing the judgment, that there was no evidence given upon which the jury might rightfully have found the verdict which they did. (185 U. S. 499) SOUTHWESTERN COAL AND IMPROVE MENT COMPANY et al., Appts., v. HYRAM Y. MCBRIDE et al. Statutes-retrospective operation of act prohibiting collection of royalties under In dian coal leases. The collection of royalties due and owing to the lessors of coal mines in the Choctaw nation for coal mined under valid leases prior to the Curtis act of June 28, 1898, was not prohibited by the provisions of § 16 of that act, making it unlawful for any person after the passage of such act to demand or receive any such royalty, or for anyone to pay any such royalty to any individual. [No. 230.] So, in Texas & P. R. Co. v. Cox, 145 U. S. 593, 606, 36 L. ed. 829, 833, 12 Sup. Ct. Rep. 905, 909, which was an action to recover damages against the company for the death of plaintiff's husband, resulting from the neg- Argued April 21, 1902. Decided May 19, ligence of the company, it was remarked, in regard to the evidence in the case, that "the bill of exceptions does not purport to contain all the evidence, and it would be improper to hold that the court should have directed a verdict for defendants for want of that which may have existed." 1902. APPEAL from the United States Circuit Statement by Mr. Justice White: It is true there is printed herein, together with the bill of exceptions, the statement that a motion for a new trial was made, and the remarks of the court are set forth upon his denial of the motion. The court said that, if the verdict were to be set aside, it would have to be based solely upon the failure of evidence to show that Ross was a citizen of the United States; but the court also This litigation was begun in the United. remarked that at the time when he gave the States court for the Indian territory, central; instruction to the jury, that Ross must have judicial district, sitting at Atoka, by the fil. been, not only a bona fide resident of the ing of a bill in equity on behalf of Hyram territory, but a citizen of the United States, Y. McBride, a citizen of the Choctaw Nation. when the cutting of the timber was done, he The defendants named in the bill were the believed it to be a true expression of the law National Bank of Denison, the Southwestern applicable to the case under the pleadings. Coal & Improvement Company (hereafter It is plain that, in the view of the judge referred to as the coal company) and J. A. when the case was submitted to the jury, Randell, as administrator of the estate of he thought there was evidence upon which G. G. Randell, deceased. The coal company a jury might find the fact of the citizenship is an appellant in this court, while McBride of Ross. His subsequent statement made and Randell are the appellees. It was upon the refusal to grant a new trial, which averred in the bill that on April 6, 1894, the inferentially, perhaps, admits that there was complainant (McBride) was the owner of a not sufficient evidence to show that Ross share in a certain coal or mining interwas such citizen, leaves a foundation for est situated in the town of Coalgate, Indian the belief that there was room upon the evi-territory, which coal claim was being opedence for a difference of opinion in regard to rated, under royalty contracts, by the coal that fact. However that may be, the record company; that, to secure an indebtedness is in such a state that we cannot say that due by the complainant to the National all the evidence given upon the trial is con- Bank of Denison, complainant had executed tained in the bill of exceptions, and, there- and delivered a mortgage upon his aforesaid fore, we cannot say that there was no evi- share; and that, under the assumed authordence of the residence, and of the citizenship ity of a power of sale contained in the mortof Ross, upon which the verdict of the jury gage and pursuant to a combination between might be sustained. If there were evidence the bank and one G. G. Randell, a purported sale of said share of complainant was made | defendant Randell, administrator, wherein to said Randell, but that said pretended sale, it was agreed that the complainant was enfor various stated reasons, was illegal and titled to $900 of the sum admitted by the void. It was further averred that from the coal company to be unpaid, and that the said time of said pretended sale the coal compa- defendant administrator was entitled to the ny had failed to make payments of royalties remainder, or the sum of $1,717.29. Upon due upon said share of complainant, and was the pleadings in the cause and the stipulaliable to account therefor. The prayer of tion referred to, a motion for judgment the bill was, in substance, that the sale in against the coal company for $2,617.29 was question be declared a nullity, and that the filed on behalf of the complainant and said various defendants account to complainant defendant administrator. The motion was in respect to the royalties received and re- granted, and a judgment was entered accordtained. ingly. An appeal was taken to the court of appeals for the Indian territory, and that court affirmed the judgment. 54 S. W. 1099. The judgment of affirmance was in favor of McBride and Randell, administrator, against the coal company and the sureties on its supersedeas bond (Clarence W. Turner and Homer B. Spaulding), for the amount of the original judgment, with interest and costs. An appeal was then prosecuted by the coal company and Turner and Spaulding to the United States circuit court of appeals for the eighth circuit. That court affirmed the judgments (43 C. C. A. 683, 104 Fed. 1007), and the cause was then appealed to this court. The bank filed its answer, and therein disclaimed having any interest in the unpaid royalties claimed by complainant and J. H. Randell, as administrator of G. G. Randell. In its answer the coal company, among other things unnecessary to be stated, admitted that it had withheld payments from March 1, 1897, of royalties on the coal mining share referred to in the complaint, and averred that the amount of said unpaid royalties aggregated $2,617.29. The coal company also further specifically pleaded in its answer as follows: "Defendant coal company further states that on the 28th day of June, 1898, the President of the United States approved an act entitled 'An Act for the Protection of the People of the Indian Territory, and for Other Purposes,' and which said act of Congress is commonly known as the 'Curtis bill,' and by 16 of said act it was provided that it should be unlawful for any person, after the passage of said act, except as otherwise provided therein, to claim, demand, or receive for his own use, or the use of anyone else, any royalty on coal, or any rents on any lands or property belonging to any one of said tribes or nations in said territory, or for anyone to pay to any individual any such royalty or rents or any consideration therefor, whatsoever. "And that by virtue of the provisions of said act of Congress hereinabove referred to, on and after the 28th day of June, 1898, no royalties accrued to any person upon this said interest claimed by the plaintiff in said mines; and that by virtue of the provisions of said act of Congress, hereinabove referred to, the royalty which accrued upon said interest so claimed by the plaintiff in said mines and which said coal company had not paid over to said defendant bank in accordance with plaintiff's instructions, is no longer due and payable to the said plaintiff or any person claiming under him, and cannot be claimed, demanded, or received by the plaintiff, or any other person; and that by virtue of § 18 of said act of Congress, hereinabove referred to, any person claiming, demanding, or receiving any of the royalties which the plaintiff claims accrued upon the interest claimed by him in said coal mines, becomes guilty of a misdemeanor, which is punishable by a fine of not less than one hundred dollars ($100.00), and is liable to forfeit possession of the property in question." Messrs. James Hagerman, Clifford L. Mr. Justice White, after making the foregoing statement, delivered the opinion of the court: The sole question presented for the consid eration of the courts below and necessary to be passed upon by this court was, and is: Did the act of Congress, approved June 28, 1898, known as the Curtis act, operate to deprive the lessors of coal mines in the Choctaw Nation of the royalties due and owing to them for coal mined under valid leases prior to the date named! The question necessarily requires a construction of § 16 of the act, which reads as follows: "Sec. 16. That it shall be unlawful for any person, after the passage of this act, except as hereinafter provided, to claim, demand, or receive, for his own use or for the use of anyone else, any royalty on oil, coal, asphalt, or other mineral, or on any timber or lumber, or any other kind of property whatsoever, or any rents on any lands or property belonging to any one of said tribes or nations in said territory, or for anyone to pay to any individual any such royalty or rents or any consideration therefor whatsoever; and all royalties and rents hereafter payable to the tribe shall be paid, under such rules and regulations as may be prescribed by the Secretary of the Interior, into the Treasury of the United States to the credit of the tribe to which they belong: Provided, That where any citizen shall be in possession of only such amount of agricul tural or grazing lands as would be his just and reasonable share of the lands of his naA written stipulation was thereafter en- tion or tribe and that to which his wife and tered into between the complainant and the 'minor children are entitled, he may con tinue to use the same or receive the rents | treaty or convention entered into pursuant thereon until allotment has been made to him: Provided, further, That nothing herein contained shall impair the rights of any member of a tribe to dispose of any timber contained on his, her, or their allotment." [30 Stat. at L. 501, chap. 517.] A particular consideration of § 18 of the act, referred to in the answer of the coal company, is not required, as the section merely provided for the punishment of any person convicted for violating any of the provisions of §§ 16 and 17 of the act. On the part of the appellants, it is contended that the section in question is retrospective in its operation, and inhibits the collection of royalties due and owing at the time of the approval of the Curtis act, even though such royalties, had the statute in question not been passed, might lawfully have been collected by the lessors to whom it had been agreed the same should be paid. The circuit court of appeals, however, sustained the contention that the provisions of the section in question had only a prospective operation, and in so doing we think no error was committed. We adopt the reasoning of the court below on the subject. The court said (43 C. C. A. 652, 104 Fed. 473): to the Constitution." We do not decide this contention, in view of the fact that it does not appear to have been raised or considered in the courts below, and it is besides entirely inconsistent with the answer of the coal company, wherein it is substantially conceded that the lease in question was valid in its inception, and that the unpaid royalties would have been due and owing to the lessor or his assigns, but for the effect of the alleged nullifying provisions of § 16 of the Curtis act. 1. 2. - The objection of the want of jurisdiction of the supreme court of the District of Columbia sitting as a court of equity, over a sult to set aside a will of real and personal property, will be regarded as waived where the parties agreed to submit certain issues to a jury (before whom such issues were in fact tried) and stipulated for returning the testimony there taken to the equity court for consideration by the judge thereof. A will of a person of sound mind and memory cannot be set aside in the Federal courts on evidence tending to show only a possibil Ity or suspicion of undue influence. [No. 237.] "The function of the legislature is to prescribe rules to operate upon the actions and rights of citizens in the future. While, in the absence of a constitutional inhibition, the legislature may give to some of its acts a retrospective operation, the intention to do so must be clearly expressed, or necessarily implied from what is expressed; and, assuming the legislature to possess the power, its act will not be construed to impair or destroy a vested right under a valid contract unless it is so framed as to preclude any other interpretation. If Congress had intended Argued April 25, 28, 1902. to deprive lessors of the royalties due and owing to them at the date of the act it would have used appropriate language to express that intention, and would necessarily have made some provision for the disposition of such royalties. But it is clear from the language of the act that it does not deal with royalties already paid, or already due and owing to lessors under leases for coal already mined. Congress, by the Curtis act, neither attempted nor intended to interfere with the rights of lessors to royal ties due them under their leases at the date of the passage of the act." 19, 1902. Decided May PPEAL from the Court of Appeals of the A District of Columbia to review a decree undue influence. Reversed. See same case below, 17 App. D. C. 238. Statement by Mr. Justice Brewer: of this District on April 7, 1899, to set aside This was a bill filed in the supreme court the following will: In the name of God, Amen. I Mary Beyer of the city and county of Washington and District of Columbia being now of sound and disposing mind, do make, ordain, publish and declare this to be my last will and testament: That is to say, first after all my lawful debts are paid and discharged the residue of my estate, real and personal, I give, devise, bequeath, and dis It is asserted in the brief of counsel for the appellants that the contract under which the royalties in question became due was made under authority of a tribal law of the Choctaw Nation, and we are asked to assume that the authority to make the lease in question was not either directly or indirectly conferred by Congress, and that in consequence the contract was of no valid-pose of as follows: to wit all the furniture ity by reason of § 2116 of the Revised Statutes, wherein, among other things, it is declared that "no purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by and personal effects now in the home, number 2258 Brightwood avenue I desire to remain there during the life of my husband Louis Beyer or so long as it remains the family home, and in the event of the house not being retained as a family home then the 'furniture and all other personal effects be *116 115 longing to me are to go to and belong to | Louis Reyer, Junior, a nephew; Helen B. my nephew and adopted son born Charles Johnson, a niece; Louis Beyer, Junior, as Lewis Smith but adopted by me at birth and executor, and Meyer Cohen and Adolph G. thereafter always called Louis Beyer, Jun-Wolf, trustees in a deed of trust executed ior. To my sister Elizabeth Kersinski Maus of Philadelphia, Pa. I leave five dollars. To my sister Caroline Kersinski Lefevre of Brookland, D. C. I leave five dollars. To my niece Helen J. Fenton of Washington, D. C., I leave five dollars. by the husband of the testatrix on May 13, 1897. The ground of attack was the alleged mental incapacity of the testatrix and undue infiuence on the part of Louis Beyer, Junior, and Helen B. Johnson. The personal property belonging to the testatrix was of little value, but she owned certain real All the rest and residue of my estate, real, estate, subject to a trust deed, which in the personal and mixed, of which I may die bill was alleged to be of the value of $25,000 seized and possessed, whatsoever and where- over and above the encumbrance. Louis soever, of what kind, nature and quality so- Beyer, Junior, and Helen B. Johnson, anever the same may be, and not hereinabove swering separately, denied metal unsoundgiven or disposed of, I hereby give, devise, ness and undue influence; alleged that the and bequeath, unto my nephew and adopted will was duly executed, and challenged the son, Louis Beyer, Junior, and Helen B. jurisdiction of the court, sitting as a court Johnson my niece in equal shares, as tenants of equity, to entertain the bill. The trusin common, and not as joint tenants, their tees pleaded that the bill stated nothing enheirs and assigns, absolutely and forever. titling the complainant to relief in equity, Having full faith and confidence in the and averred that their deed of trust was honesty, integrity, and affection of my said valid lien. Louis Beyer demurred generaladopted son and of my said niece, I leave ly. On June 20, the court having made no them all the property stated herein knowing ruling upon the question of jurisdiction, that they will provide a home and home the parties signed this stipulation: comforts for Louis Beyer, Senior, during "It is hereby stipulated by and between his natural life, but this is not to be con- the parties to this cause this 20th day of strued to mean that said Louis Beyer, Jun-June, 1899, that the court may make an or ior and Helen B. Johnson are to be restricted der certifying certain issues, to be named from disposing of any or all of the property if their judginent so dictates but in the event of disposing of all the property before the death of Louis Beyer, Senior, they are to always maintain a home and home comforts for my beloved husband, Louis Beyer, Senior. in said order, to be tried by a jury of the circuit court, and that the findings by said jury upon said issues shall be returned to this court; whereupon a decree shall be entered in accordance with said findings, all rights of appeal as in cases of issues from the orphans' court being hereby reserved." Likewise I make, constitute, and appoint, And thereupon the court made this order: my adopted son born Charles Lewis Smith "Ordered by the court this 20th day of but always known as Louis Beyer, Junior, June, 1899 (the parties to this cause conto be executor of this my last will and tes-senting herto), that the following issues to tament, hereby revoking all former wills be tried by a jury be, and they hereby are, made by me, and I request that he be not re-certified to the circuit court, to wit: quired to give bond as such executor. In witness whereof I have hereunto set my hand, subscribed my name, and affixed my seal this fourteenth day of July in the year of our Lord one thousand eight hundred and ninety-six in my home at Washington, D. C. Mary Beyer. [Seal.] "First. Was the said Mary Beyer at the time of the alleged execution of the paperwriting bearing date the 14th day of July, A. D. 1896, and purporting to be her last will and testament, of sound and disposing mind, inemory, and understanding, and capable of executing a valid deed or contract? July, 1896, and purporting to be the last will and testament of the said Mary Beyer, procured by fraud, circumvention, or undue influence practised or exercised upon the said Mary Beyer by Louis Beyer, Jr., Helen B. Johnson, or by either of them or by any other person? "Second. Was the execution of the said The above-written instrument was sub-paper-writing bearing date the 14th day of scribed by the said Mary Beyer in our presence and acknowledged by her to each of us, and she at the same time published and declared the above instrument so subscribed to be her last will and testament, and we at the testator's request and in her presence and in the presence of each other have signed our names as witnesses hereto and written opposite our names our respective places of residence. P. J. Brennan, 1418 F St. N. W., Washington, D. C. Wade H. Atkinson, 707 12th St. N. W., Washington, D. C. Thomas C. Smith, 1133 12th St. N. W., Washington, D. C. The parties named as defendants were Louis Beyer, the husband of the testatrix; "Third. Were the contents of the paperwriting bearing date July 14th, 1896, and purporting to be the last will and testament of said Mary Beyer, known to her at the time of the alleged execution thereof ?" This order was assented to by all the parties. In pursuance thereof the case came on for trial before Mr. Justice Cole and a jury, and the jury, after hearing the testimony and the instructions of the court, answered each of the questions in the affirmative. A motion for a new trial was overruled by the |