¶1 dissenting:
¶2 There is, I believe, no question but that neither a county court nor a commissioner of accounts can entertain a proceeding instituted for the purpose of construing a will. *496 Nevertheless, it seems to me inescapable that a commissioner of accounts who acts under Article 3 of Chapter 44, Code, in a recommendatory capacity for the county court in settling the accounts of executors and testamentary trustees, in many instances is required to attach meaning to the instrument conferring upon the fiduciary whose account is before the commissioner the power to act. This, 1 think, is clearly borne out by Code, 44-2-4, requiring the commissioner to notify in writing the creditors, dis-tributees and legatees of the time fixed for the presentation of claims, and by the provisions of Code, 44-2-16, requiring the commissioner to state in his report the persons entitled to share in the estate, the accounts concerning which are before him for settlement, and the property, amount and proportion to which they are entitled. Code, 44-2-23 protects the personal representative from liability for money disbursed in accordance with a confirmed report of a commissioner of accounts. Code, 44-4-20, when its terms are complied with, provides that a confirmed report shall be conclusive as to both executors and beneficiaries. The provisions referred to. have all been before this Court and approved.
¶3 I do not agree with the statement in the majority opinion that the holding in the case of Page v. Huddleston, 98 W. Va. 104, 126 S. E. 579, was that the settlement of a personal representative’s account and the jurisdiction of our county courts to do so, does not include the incidental construction of a will. As I read the Huddleston case, it goes no further than to except the construction of wills as being among the matters of which county courts have exclusive original jurisdiction. I therefore do not believe that the Huddleston case sustains the view expressed in the majority opinion.
¶4 The language quoted from the case of Hansbarger v. Spangler, 117 W. Va. 373, 375-6, 185 S. E. 550, deals with the statute of descents and distributions and consequently does not relate to the construction of wills; but even with that limitation it strikes me that a casual reading of Article 2 of Chapter 44, Code, shows that the case does not apply.
¶5*497 The opinion of this Court in the case of Steber v. Combs, 121 W. Va. 509, 5 S. E. (2d) 420, to the effect that under Article VIII, Section 24 of the Constitution the power “to adjudicate judicial questions” is withheld from the probate courts, I believe states a plainly unsound principle. See Page v. Huddleston, 98 W. Va. 104, 108-9, 126 S. E. 579. Furthermore, the correction that this Court made in the third syllabus of the Steber case in the matter of In re Estate of T. J. Long, deceased, 122 W. Va. 473, 10 S. E. (2d) 791, and in doing so holding that a commissioner of accounts under Constitution, Article VIII, Section 24, has no jurisdiction to settle conflicting claims to a decedent’s estate, was plainly to infer that county courts have no such jurisdiction, because a commissioner is nothing more than a statutory adjunct to assist the county court in performing judicial functions in matters of probate and the settlement of the accounts of personal representatives. As I have already stated, it strikes me as being indispensable that a court, passing upon matters of probate and matters affecting the final settlement of the accounts of personal representatives, as an indispensable incident of that duty, be empowered to construe testamentary papers, subject, of course, to the chancery and appellate jurisdiction of circuit courts.
¶6 The county courts of Virginia and of this State originally had general civil jurisdiction both at law and in chancery, so that the provisions of Constitution, Article VIII, Section 24, must be read in the light of the fact that they are a curtailment of preexisting powers. (For a general historic discussion of county courts see De Vaughn v. De Vaughn, 19 Gratt. 556.) This section preserves to county courts probate jurisdiction, specifically including their jurisdiction to pass upon and settle the accounts of personal representatives. The privilege of making testamentary disposition of personalty and particularly of realty has been a matter of slow and complicated growth, the intricacies of which require exhaustive study to comprehend. In Judge Green’s opinion in the case of Dower v. Seed, 28 W. Va. 113, beginning at the bottom of page *498 139 (noting particularly the last paragraph beginning on page 153 to the middle of page 156), the discussion indi-pates that our county courts are vested with full judicial power in matters of probate and settlement. Being a constitutional power, it cannot be diminished by legislation. This, I believe, was the exact purpose of the framers of our Constitution. The probate and settlement jurisdiction actually involves a large amount of clerical routine even in uncontroverted matters, and it is almost necessary to provide a separate judicial agency at all times available in order that personal representatives and their bondsmen may be said to have discharged their legal duties and may be released from the binding effect of their conditional obligation. Hence, commissioners of account. To hold, as in my judgment the majority opinion has indirectly held, that our circuit courts in pur largely populated areas are the only tribunals in which an order can be entered to the effect that a personal representative has fully discharged his fiduciary duty in uncontroverted, as well as in controverted, matters concerning the estate of a decedent throws an unbearable burden upon those courts and, to my mind, unnecessarily deprives a puzzling problem of what was hoped to be the final solution.