¶1 concurring:
¶2 I wish to supplement what I have written for the Court with a brief observation on the procedure involved in initiating a claim of this sort before a commissioner of accounts. The jurisdiction of the commissioner of accounts was directly challenged at the hearing before him, and was evidently made a point in the circuit court and perhaps before the county court, since a brief in opposition to the appeal was filed in this Court by counsel for the executors in which the question was raised. The point is not stressed upon this submission. Nevertheless, and particularly in view of the observations I intend to make upon the procedural aspect in the case of James Keeley et al. v. T. S. Riley et al., executors, 116 W. Va. 677, 183 S. E. 43, growing out of this same hearing before the commissioner of accounts upon another claim there filed, I desire, if I can, to keep my own position upon the question free from confusion.
¶3 Section 1 of article 2 of chapter 44 of the Code provides that, upon the qualification of any personal representative, the estate of his decedent shall be referred to a commissioner of accounts “for proof and determination of debts and claims. ’ ’
¶4 Section 6 provides that claims properly itemized, accompanied by vouchers and verified, shall be taken as proved unless denied by counter affidavit, in which case the commissioner shall fix a time and place for hearing evidence upon such contested claim.
¶5 Section 8 provides for the filing before the commissioner of proof of contingent and unliquidated claims and provides that there shall be no distribution of assets, except as otherwise provided in the act, without reserving a sum sufficient to meet such contingent or unliquidated claims or the proportion thereof equal to what is paid to other creditors of the *733 same class. The section further provides that if such liability becomes fixed before the commissioner completes his report, evidence thereof may be taken and the claim allowed.
¶6 Section 17 provides the manner of dealing with contingent and unliquidated claims, and with claims not matured, in the report of the commissioner of accounts.
¶7 Without going into the tedious detail that would be necessary for a full exposition of the meaning of these provisions in the light of all of the other provisions of article 2, I believe that a careful examination of that entire article shows distinctly that the matters that the commissioner is intended definitely to pass upon are those claims based upon a contractual undertaking, either express or implied, for the payment of money, and upon judgments and decrees that may have been rendered upon claims of that nature, or of any other nature, and become final against the estate of the decedent. I think that it is reasonably clear that the commissioner of accounts, in view of the express provisions of section 8 and of section 17 of article 2, providing the method of dealing with contingent and unliquidated claims, was not intended directly to pass upon claims sounding in tort and claims sounding in damages for breach of contract.
¶8 I recognize that against this view there may be urged the fact that the claim here before us is unliquidated from the standpoint that it rests upon a qxicmtum meruit, the fact that neither party to the contract could alone render its amount certain, and the further fact that it is now in dispute. For many purposes, this claim would undoubtedly have to be regarded as an unliquidated claim, bút I do not believe that it should be so treated within the meaning of this statute. Section 6 of article 2 of chapter 44 expressly provides for the filing of a counter affidavit and for the contesting of claims before the commissioner of accounts. Since a dispute over a claim would necessarily render it “unliquidated” within the general definition, it seems reasonably clear that the “un-liquidated claims” of which the commissioner of accounts takes no cognizance, except to set aside the estimated amounts thereof under the statute, are not the class of “unliquidated claims” within the general definition, but that that expres *734 sion is used in this particular statute in a manner and meaning to be determined by tbe purpose and intention of tbe act itself, and not by tbe general definition of tbe expression “unliquidated claim.”
¶9 I am, therefore, of tbe opinion tbat tbe commissioner of accounts was witbin his powers in passing upon this claim.