The truth of the answer is not controverted, but the counsel for the petitioner insists that he has a right to proceed and prove how much is due on her legacy, as he proposes to proceed against the sureties to the bond, which this court required, for cause, to be given by the deceased executor in his life-time.
*418This is a proceeding instituted under section 2606 of the Code. Its provisions are new and important. They are to the effect that where an executor, etc., dies, the Surrogate’s court has the same jurisdiction, upon the petition of his successor, or of a surviving executor, etc., or person interested in the estate, to compel the executor of the decedent to account for and deliver over any of the trust property which has come to his possession or is under his control, which it would have as against the decedent, if his letters had been revoked. By section 2603, the substance of the decree which the' surrogate, in his discretion, may make, in case of the revocation of letters, is to the effect that the executor shall “ pay and deliver over all money and other property in his hands into the Surrogate’s court, or to his successor in office, or to such other person as is authorized by law to receive the same,” etc. It being conceded that there is no property in the hands of the administratrix of Warren S. Peck belonging to the estate of Benjamin Peck, there is, as it seems to me, no basis for a decree of any kind. It would be idle to decree the performance of an act impossible to be accomplished. It is, therefore, utterly immaterial, in this proceeding, to inquire or determine how much is due upon the petitioner’s legacy. I must accordingly decline to enter upon such an investigation.
I think it doubtful, although the expression of the doubt may be considered obiter, whether, under any circumstances, payment to a legatee could be decreed by virtue of the provisions of section 2603.
Ordered accordingly.