In the case considered the owner of the interest lived in Boston, hence his estate was not taxable in New York. (See, also, In re Phelps' Estate, 100 Misc. Rep. 87, 165 N. Y. Supp. 75; In re Hanson's Estate, 119 Misc. Rep. 100, 195 N.Y. Supp. 255; In re Harkness' Estate, 83 Okl. 107, 42 A.L.R. 399, 204 Pac. 911.) This distinction has been clearly recognized in In re Houdayer's Estate, 3 App. Div. 474, 38 N.Y. Supp. 323; citing Phipps' Case, 77 Hun, 325, 28 N.Y. Supp. 330, and in In re Ames' Estate, (Sur.) 141 N.Y. Supp. 793.
( Matter of Swift, 137 N.Y. 77; Matter of Merriam, 141 id. 484.) In Matter of Houdayer ( 3 App. Div. 474; 150 N.Y. 37) this court held that the power of the State to tax is limited to persons, property and business within its jurisdiction. In discussing, in Matter of Houdayer, the right of the State to impose a transfer tax, Mr. Justice BARRETT said, at page 478: " If it is upon the right of succession, then plainly it is a tax upon a right granted by a foreign State. If it is not a tax upon such right, then it is simply a tax upon property acquired through the instrumentality of a foreign succession law.
In such case the right of the State to impose a tax is based on its dominion over the property situated within its territory. ( Matter of Houdayer, 3 App. Div. 474; S.C. revd. in 150 N.Y. 37; Matter of Bronson, Id. 1, 8; Matter of James, 144 id. 10.) Our conclusion then is that the act of 1887 did not give the Surrogate's Court jurisdiction over this property, and that such court has not acquired jurisdiction by virtue of the later amendments to the law, and now forming a part of the General Tax Law (Chap. 908, Laws of 1896), for the reason that the statute only attempts to confer jurisdiction on the Surrogate's Court over property of non-resident decedents within its territory, and there was no such property at the time of such enactment, or subsequent thereto.