dissenting in part.
I agree that the “open-mine” principle should be applied if the mineral rights were producing royalties at the time the trust was created. I also agree that the “Massachusetts rule,” espoused by this court in Allith-Prouty Co. v. Wallace, 32 Wyo. 392, 233 P. 144, 39 A.L.R. 513 (1925), reh. denied 234 P. 504, and essentially stated in Restatement of Trusts, Second, § 236, that dividends “in property other than in shares of the holding corporation,” should govern the treatment to be given the distribution of shares in New Jersey Standard by Indiana Standard.
*1367However, the probate judge’s ruling that the stock dividends consisting of 6,000 shares of Standard Oil Company of Indiana stock were income and should be distributed to Margaret Hewlett was contrary to the law of Wyoming. Four years prior to the probate court’s ruling this court stated:
“* * * Ordinarily a dividend declared in stock is to be deemed capital and not income. The interest of stockholders in a corporation remains unchanged upon the latter declaring a stock dividend. * * *” Allith-Prouty Company v. Wallace, supra, 32 Wyo. at 408 and 234 P. at 506.
As this court explained in Allith-Prouty, when a corporation declares a stock dividend it is merely increasing the number of shares that a stockholder owns without increasing the stockholder’s interest in the corporation. By allowing Margaret Hewlett to treat the stock dividend as income, the probate judge reduced the percentage of the trust’s ownership of the corporation. In other words, the principal of the trust and the contingent remaindermen’s interest were substantially diminished. Therefore, the probate judge erred when he declared that the stock dividends were income of the trust and the remaindermen should be entitled to recover these shares of stock from Margaret Hewlett’s estate.
The majority avoids this very logical and proper result by treating the action of the probate court of Laramie County as an error committed in the exercise of proper jurisdiction and, therefore, correctable only by timely appeal. I cannot agree either that the probate court had jurisdiction or that the action before us, instituted by the remaindermen some years after the original estate had been closed, is barred by limitations or laches.
The majority correctly cites Church v. Quiner, 31 Wyo. 222, 224 P. 1073 (1924) as holding the probate arm of the district court to exercise only a limited jurisdiction and that jurisdiction is to distribute and settle probate estates. Any decree outside that jurisdiction is ineffectual and void. Matter of Estate of Frederick, Wyo., 599 P.2d 550, 555 (1979). I also consider pertinent this statement from 1 Bancroft’s Probate Practice, § 27, pp. 70-71 (2d ed. 1950), quoted with approval by us in Matter of Estate of Blaney, Wyo., 607 P.2d 354, 356 (1980):
“ ‘* * * It is thoroughly established that in probate proceedings title to property as between the estate, the heirs or devi-sees, and a third person may not be tried. Thus a superior court, sitting in probate, has no jurisdiction or authority to determine disputed titles to the property of the estate of a deceased person. * * *’” (Footnote omitted.)
Here the dispute existed between the estate of Charles W. Burdick and the trustee (as well as the remaindermen) of the trust created by Burdick during his lifetime. Under the principles establish in Quiner and recognized by the two later decisions, the probate court was without jurisdiction to determine ownership of either the 12,000 shares or the 6,000 shares, over both of which it sought to exercise jurisdiction when it decreed that the 12,000 shares should be turned over by the inter vivos trust trustee to the testamentary trust trustees, and the 6,000 shares should be turned over by the inter vivos trustee to the life beneficiary of the testamentary trust.
I cannot agree with the majority when they conclude (slip opinion at page 3) that the inter vivos trust property passed to the estate in accordance with the provisions of the will. While the 12,000 shares of Indiana were included in the inventory the probate judge did not treat them as part of the testamentary estate of Charles W. Burdick. What he did was to give effect to an instrument not before him and direct a person (the trustee of the inter vivos trust) likewise not before him to transfer part of the corpus of the trust to one entity (the testamentary trust) and another part of that corpus to another party (the life beneficiary).
By the inter vivos trust agreement the trustee was directed:
“TO HAVE AND TO HOLD all and singular the said shares of stock, in trust nevertheless, to collect and receive the income thereof, and to apply the entire *1368net income to the use of the grantor during the term of his natural life, and upon the death of the said grantor shall transfer, pay over and deliver the said shares of stock to the trustee or trustees of the estate of said grantor who have been or may be named and designated by said grantor in his Last Will and Testament.” (Emphasis added.)
That the probate judge was not distributing the Indiana stock (either the 12,000 shares or 6,000 shares) as estate property is show in paragraph 3 of the decree of distribution:
“3. The Court further finds that under the trust agreement referred to in said final account and report, 12,000 shares of the capital stock of Standard Oil Company, an Indiana corporation, were issued to Margaret B. Hewlett, trustee, under Certificates numbered * * *, and that thereafter and on or about the 15th day of March, 1929, 6,000 shares of the capital stock of said Standard Oil Company, an Indiana corporation, were issued as a stock dividend upon said original 12,000 shares, * * * to Margaret B. Hewlett, trustee. The Court further finds that under said trust agreement, and pursuant to the terms thereof, said original 12,000 shares of the capital stock of Standard Oil Company, an Indiana corporation, should be transferred and delivered by said trustee to George W. Hewlett and Margaret B. Hewlett as testamentary trustees named in the will of decedent; that under the terms of decedent’s will, Margaret B. Hewlett, daughter of decedent, is entitled to receive all net income from the property of said estate, during the period of her natural life, and that said 6,000 shares, issued as a stock dividend by the Standard Oil Company, an Indiana corporation, should be distributed, transferred and delivered by Margaret B. Hewlett, trustee as aforesaid to Margaret B. Hewlett as life beneficiary under decedent’s will as a portion of the net income from said estate passing to her under the will of her father Charles W. Burdick.” (Emphasis added.)
Had the probate judge considered the distribution as being from the estate, the distribution would have been directed to be from Margaret and George Hewlett as executors of the estate and not from Margaret Hewlett as trustee.
The probate judge did not include the inter vivos trust property in the estate. His order directed that this property pass from the inter vivos trust directly into the testamentary trust. This type of transfer is a mirror image of the present-day pour-over trust where upon death estate assets are transferred to an existing inter vivos trust. Here, property from an existing inter vivos trust was transferred into a testamentary trust. Because the shares in question never became part of the estate, the probate judge never had jurisdiction over the inter vivos trust proper. Therefore, the probate court’s order awarding Margaret Hewlett the 6,000 shares of stock dividend as income is a nullity. Church, supra, 224 P. 1073.
Furthermore, the federal district court did not have jurisdiction when it ordered Standard Oil of Indiana to reissue the shares of stock in Margaret Hewlett’s name as an individual. The contingent remain-dermen were not made parties to that action and, therefore, like the probate court’s decree the order of the federal district court is a nullity. As the court in Mason v. Young, 203 Ga. 121, 45 S.E.2d 643, 645 (1947), stated, quoting from 31 C.J.S., Estates, § 100:
“ ‘It is the general rule that the right of contingent remaindermen constitutes an estate in land of which they cannot be divested during the existence of the life estate except by appropriate legal proceedings to which they are made parties.’ ”
Appellees contend that appellants are barred from asserting the present claims by reason of the statute of limitations and laches. Once again, I cannot agree. Appellants did not have a right of action until the life estate was terminated. As a general rule neither the applicable statute of limitations nor laches will bar an action brought by remaindermen until the remaindermen are entitled to possession of the estate. Shutt’s Adm’r v. Shutt’s Adm’r, 192 Ky. 98, 232 S.W. 405, 409 (1921); Metcalfe v. First *1369Nat. Bank of Pittsfield, 312 Ill.App. 385, 39 N.E.2d 61, 63-64 (1941).
In Shutt’s Adm’r, supra, 232 S.W. at 409, a case not unlike the one at bar, the court held that the appellant could not
“* * * defeat the recovery by the re-maindermen of the money received by his decedent for the bank stock in question. As the money she received for the bank stock was a part of the corpus of the estate, neither her failure to reinvest it as directed by her husband’s will nor her failure to charge herself with it in any of her various settlements had the effect to change its status. * * *”
The decedent, who held a life estate in the property devised to her by her husband’s will, sold 56 shares of bank stock and failed to reinvest the money or to use the money to pay estate debts. After the termination of the life estate, the remaindermen brought an action seeking to recover these funds from the life tenant’s estate. In discussing when the statute of limitations begins to run, the court stated:
“* * * There is nothing in the facts of this case that could have caused the case that could have caused the statute of limitations to begin to run before the death of the life tenant. It belongs to the class controlled by the general and well-known rule that—
“ ‘The life tenant’s holding is not adverse to the remaindermen, but, on the contrary, is amicable to them; the possession of the life tenant being the possession of the remaindermen.’
“Therefore the statute of limitations does not begin to run until the death of the life tenant or termination of the life estate; and this is true whether the property constituting the life estate be real or personal property. [Citations.]
“There are a number of cases which hold remaindermen may sue in equity before the expiration of the life estate to quiet their title to the property as against an adverse claimant, or to be placed in a condition to make it available when the time shall arrive when they will be entitled to the possession and use of the estate. [Citations.] These cases, however, also hold that the statutes of limitation do not begin to run against remain-dermen until the expiration of the life estate; which is necessarily so, because the possession of a life tenant, or of one holding under the latter, cannot, during the continuance of the life estate, be adverse to the remaindermen. The several cases cited are conclusive of the question that the statute of limitations is not a bar to the recovery by the remaindermen of the proceeds of the bank stock sold by the appellant’s decedent. * * *” 232 S.W.2d at 409.
I find the theory behind this general rule particularly compelling in the case of contingent remaindermen like those in the case at bar because their interest may never become vested. Here the remaindermen’s cause of action is not barred by the statute of limitations or laches.
For these reasons I would affirm the decision of the trial court upon all issues except as to dividends of Standard Oil Company of Indiana stock. As to that question, I would reverse and remand to the district court with instructions to declare the testamentary trustee the owner of all stock dividends paid in stock of Indiana Standard growing out of ownership of the original 12,000 shares, the 6,000 shares dividend and any later stock dividends based in such ownership.