The issue to be dealt with in this ease is whether in Wyoming the probate court has jurisdiction to adjudicate title to real property which is included among the assets of an estate. The specific claim presented is that of a surviving spouse to have set over to her one-half of certain oil and gas interests by virtue of the application of the community property laws of the State of Texas, which is the place of domicile of the decedent. The district court, sitting in probate, denied the claim, holding that the real property situated in Wyoming must pass in accordance with Wyoming law; and that the community property laws of the State of Texas did not govern the disposition of such property. We shall hold that the probate court is without jurisdiction to adjudicate title to such property, and for that reason only we shall affirm the decree of final distribution of the estate from which this appeal is taken.
A Petition for Ancillary Probate of Will was filed in the District Court of the Second Judicial District in Carbon County by the executors of the estate of Donald D. Harrington. The Wyoming assets for which probate was sought are oil and gas interests which were appraised at a value of $1,089,030.00. In the First and Final Account and Petition for Distribution of the Estate the executor represented and petitioned:
“That under the terms of the Last Will and Testament of the decedent, all of the above described property in said estate be set over and distributed unto THE DON & SYBIL HARRINGTON FOUNDATION, a non-profit Texas corporation.”
The surviving spouse, Sybil Buckingham Harrington, then filed Objections to First and Final Account and Petition for Distribution of Estate in which she asserted that the oil and gas and other mineral interests were acquired by the decedent with community property funds and that one-half or 50 percent of the assets should be set over and conveyed to her. Her prayer for relief reads as follows:
“WHEREFORE Sybil Buckingham Harrington, surviving spouse of decedent and Objector herein, prays that one-half (½) of the assets of this estate be set over to her, an interested party, wife and surviving spouse of the decedent herein, and for such further and different relief as is proper in the premises. And Objector further prays that her objections to the said First and Final Account and Petition for Distribution of said Estate be set down for hearing at a time and place pursuant to law.”
This pleading was served upon counsel for the executors and others listed as heirs, devisees and legatees in the Petition for Ancillary Probate of Will by ordinary mail. The record does not disclose actual notice to the heirs, devisees, and legatees of the ancillary probate nor of the objections.
A stipulation of facts then was filed in which the executors and the objector agreed to the following statement of facts:
“Donald D. Harrington died on April 27, 1974. At the time of his death, he was a resident of Potter County, Texas, and left an estate in the Counties of Carbon and Campbell, Wyoming. His estate in these counties consisted of royalty mineral interests having an appraised value of $1,089,030.00, which interests are more *558particularly set forth in the inventory and appraisement filed herein. His sole surviving heir was his widow, Sybil Buckingham Harrington, of Amarillo, Texas. Mr. Harrington left a Last Will and Testament, which, in addition to a number of specific bequests, gave, under Section Five thereof, to his wife an amount equal to the maximum ‘marital deduction allowed his estate under the Internal Revenue Code,’ which amount was satisfied out of other properties in the estate in the probate thereof in the County Court, Potter County, Texas. All of the specific bequests and the marital deduction bequest to the surviving spouse being satisfied out of assets outside of the State of Wyoming, the assets in the State of Wyoming are subject to distribution under the residuary clause, Section XII, of the Last Will and Testament. Under this residuary clause, the residuary [sic] of the estate was given to The Don & Sybil Harrington Foundation, a nonprofit Texas corporation, organized and operated exclusively for religious, charitable and educational purposes. The Last Will and Testament of said decedent was duly admitted to probate in the Probate Court of Potter County, Texas, and upon petition for ancillary probate of said Will, it was admitted to probate in the District Court of Carbon County, Wyoming, on January 22, 1975. After publication of notice of final settlement, the Executors filed a first and final account and petition for distribution of the estate herein on November 28, 1980. On December 8, 1980, Sybil Buckingham Harrington, the surviving spouse of Donald D. Harrington, Deceased, filed herein her objections to first and final account and petition for distribution of estate, claiming that all of the assets of the estate situated in the State of Wyoming were acquired with community property funds and, therefore, as the owner of one-half of the community property funds the surviving widow is entitled to one-half of the assets of said estate situated in the State of Wyoming.
“The title to all of said mineral interests are in the name of the decedent, Donald D. Harrington. The Executors admit and it can be agreed as a matter of fact that all of the assets were acquired with community property funds of the decedent and the surviving spouse.
“The Wyoming Inheritance Tax Department and the Internal Revenue Service have recognized the community property interests of Mrs. Harrington and accepted one-half of the appraised value for state inheritance and federal estate tax purposes.”
After receiving memoranda from the parties the court heard argument, wrote an opinion letter to the parties, and then entered its Decree of Final Distribution of Estate. In the Decree of Final Distribution of Estate the district court, sitting as the probate court, dealt with this issue as follows:
“11. That on December 8, 1980, Sybil Buckingham Harrington, widow of the decedent, filed herein objections to the first and final account and petition for distribution of estate, claiming that one-half of the assets of said estate should be set over to her for the reason that the same were acquired with community property funds. That pursuant to notice, hearing was held by the Court, K. W. Keldsen, attorney for the Estate, of Raw-lins, Wyoming, appearing on behalf of the Executors, and Oscar A. Hall, Attorney at Law, Rawlins, Wyoming, appearing on behalf of Sybil Buckingham Harrington, Objector, and the parties having filed herein a Stipulation of Facts and having filed Memorandum of Authorities herein, and the Court being well advised in the premises, finds that the community property laws of the State of Texas do not govern the disposition of the residue of the Testator’s estate to property situated in Wyoming which was acquired by community property funds and that the Estate assets of Donald D. Harrington, Deceased, must pass under the Will in accordance with Wyoming law and accordingly, unto The Don & Sybil Harrington Foundation, a non-profit Texas corporation.”
*559The court ordered distribution to The Don & Sybil Harrington Foundation, a non-profit Texas Corporation. This appeal followed.
The appellant in her brief stated the issues as follows:
“1. Whether a decedent’s widow is entitled to one-half of all of the Wyoming mineral interests in the decedent’s name where those interests were acquired with community funds.
“2. Whether the decedent intended to leave only one-half of the mineral interests to the residuary beneficiary under his will.”
As the dissenting opinion of Justice Raper illustrates, the first issue indeed is an intriguing one. It captures the essence of the legal problem which concerns the title to the mineral interests located in Wyoming, and presents the question as to whether those mineral interests are owned by the estate of Donald D. Harrington or whether one-half are owned by the surviving spouse. Because the probate court was without jurisdiction to adjudicate this question, we do not treat in the opinion of the court with either of the issues stated by the appellant.
It is recognized that the question of jurisdiction was not presented in argument to this court, nor was it presented in the district court. Nevertheless the rule is well established that the question of jurisdiction can never be waived, and it always is open to consideration by a reviewing court upon its own motion. Williams v. Public Service Commission of Wyoming, Wyo., 626 P.2d 564 (1981); Hayes v. State, Wyo., 599 P.2d 569 (1979); Merritt v. Merritt, Wyo., 586 P.2d 550 (1978); Pritchard v. State Division of Vocational Rehabilitation, Department of Health and Social Services, Wyo., 540 P.2d 523 (1975); Wyoming State Treasurer ex rel. Workmen’s Compensation Department v. Niezwaag, Wyo., 444 P.2d 327 (1968); and Gardner v. Walker, Wyo., 373 P.2d 598 (1962).
We have recognized that the issue sought to be resolved by these parties is one over which the probate court has no jurisdiction. In Estate of Blaney, Wyo., 607 P.2d 354 (1980), this court quoted from the controlling rule stated in 1 Bancroft’s Probate Practice, § 27, pp. 70-71 (2d Ed.1950), to the effect that title to property as between the estate, the heirs or devisees and a third person may not be tried in probate proceedings. See also Leach v. Misters, 13 Wyo. 239, 79 P. 28 (1905). In Estate of Blaney, supra, this court expressly reaffirmed the jurisdictional limitations upon the probate court as recognized in Estate of Frederick, Wyo., 599 P.2d 550 (1979); Estate of Stringer, 80 Wyo. 426, 345 P.2d 786 (1959); and Church v. Quiner, 31 Wyo. 222, 224 P. 1073 (1924).
Church v. Quiner, supra, involved a contest between the holders of two assignments of the interest of a residuary legatee in the estate. A bank held a partial assignment of the interest of the residuary legatee, and the other assignee was the legatee’s wife. The executor paid the bank on the basis of its assignment, and he then sought a credit for that amount as a charge against the distributive share of the legatee in his final report and petition for distribution. The legatee’s wife filed objections to this report, urging that the assignment to her was prior to and superior to the one made to the bank. After hearing, the probate court overruled the objections of the wife, and entered an order finding that the assignment to the bank was entitled to priority and allowing the executor to deduct the amount paid to the bank from the distributive share of the residuary legatee. Upon appeal this court held that “the probate jurisdiction of the district court does not include the power to determine the priority of conflicting assignments of a legatee’s interest in the estate.” Church v. Quiner, supra, 31 Wyo. at 226, 224 P. 1073.
In discussing the underlying rationale behind the separation of the probate jurisdiction and the general jurisdiction of the district court, this court said:
“ * * * Where, as in Wyoming, the same court that has jurisdiction in probate has also general jurisdiction, the separation of its powers exercised in probate from those exercised in actions at law or in equity might at first seem the result of a *560merely technical rule of no practical importance; but when it is borne in mind that the court in probate having jurisdiction of the estate can for many purposes acquire jurisdiction of the persons interested in the estate without any actual notice to them, the substantial nature of the distinction, as well as the importance of maintaining it in practice, becomes clear. We deem it unnecessary to refer to other reasons for confining the probate jurisdiction to ‘matters of probate,’ as defined by law.” Church v. Quiner, supra, 31 Wyo. at 227, 224 P. 1073.
In the later case of Estate of Stringer, supra, this court, following Church v. Quiner, supra, held that those claiming contractual rights arising out of the execution of reciprocal wills must assert those claims in a separate civil suit apart from the probate proceeding. Following the general rule recognizing separation of probate jurisdiction from the general powers of the district court, the court stated:
“ * * * [I]n proceedings for the probate of an instrument as the last will and testament of the deceased only matters affecting the validity and subsistence of the will should be considered, and any right or claim against the estate arising through contract must be asserted in an independent action against the administrator or the executor of the estate as the case may be.” Estate of Stringer, supra, 345 P.2d at 789.
This recognition of the separation of probate jurisdiction from the general jurisdiction of the district court is continued in Estate of Frederick, supra. There the parties sought to litigate in both the probate and, simultaneously, the district court the question of whether the holder of a lease option to purchase a filling station, which was contained in a lease, was entitled to specific performance against the estate. Recognizing that a statutory procedure did exist for the bringing of an action for specific performance to convey real property in the probate court, this court refused to give any effect to the ruling made in the separate civil action, treating the case as arising solely from the probate proceeding. We there held that if specific performance pursuant to the statutory procedure were denied by the probate court there would be no inhibition against bringing a separate action in a civil suit in the district court to obtain relief.
In the more recent case of the Estate of Blaney, supra, this court reversed a dismissal of a replevin action by the district court which had ruled that the proper place to contest the title to property included in the estate was in the probate proceedings. Relying upon our prior cases and 1 Bancroft’s Probate Practice, § 27, pp. 70-71 (2d Ed. 1950), we held that a replevin action could be maintained because the probate court did not have jurisdiction to try the title to property as between the estate, the heirs or devisees, and third parties.
The rule establishing the separation of probate and general jurisdiction applies with equal clarity in this case. The surviving spouse here is seeking not a clarification of her rights in the estate, but rather her complaint is that the property included in the estate is her separate property by virtue of the application of the community property laws of the State of Texas. Her claim is no different in substance than that of any other person who desires to contest the ownership of property against the estate.
The Supreme Court of New Mexico has had occasion to consider a substantially identical problem. In Will of Conley, 58 N.M. 771, 276 P.2d 906 (1954), the New Mexico court held that the probate court had no jurisdiction to determine the claim of a surviving widow to ownership of an undivided one-half interest in either real or personal property by virtue of community property laws. Treating her as a stranger to the estate, the court concluded that:
“ * * * [T]he probate court, and by the same token the district court sitting in matters of probate, lacked jurisdiction to enter the decree it did insofar as such decree affects the title and the ownership of the property in question. * * * ” Will of Conley, supra, 276 P.2d at 910.
*561The rationale of the New Mexico court for treating the widow as coming within those principles applicable to claims of ownership by persons not involved in the probate proceeding v/as that her claim to one-half of the property involved in the estate was not the claim of an heir in administration, but rather, a claim arising by virtue of the community property rules which did constitute her the owner of an undivided one-half interest in all community property. This is no different from the position of the surviving spouse in the instant case.
The district court, of course, disposed of Mrs. Harrington’s claim by treating with it on the merits. We can, however, affirm the district court on any proper ground disclosed by the record. Agar v. Kysar, Wyo., 628 P.2d 1350 (1981); Wightman v. American National Bank of Riverton, Wyo., 610 P.2d 1001 (1980); and cases therein cited. Because the probate court was without jurisdiction to treat with title to this property, this disposition is not one which invokes the principle of res judicata. It well may be that in a proper action in the district court the surviving spouse will be able to persuade the court that title to a one-half interest in this real property should be quieted in her or that a constructive trust should be imposed upon it for her benefit.
The judgment of the probate court in its Decree of Final Distribution of Estate is affirmed.