By the Court, Cady, P. J.
The will given in evidence by the defendants, had been regularly proved before the surrogate as a will of real estate, and that entitled the defendants to read it in evidence. The recital in the will that the testator had executed a deed to the defendant George Wait, was evidence of a perfect execution of such deed, and that he had the title to the premises in question. The judge therefore was right in ruling that as the evidence then was, the plaintiffs had no right to recover. The plaintiffs then gave evidence tending to prove that the testator was of unsound mind when he made the said will, and the defendants ..gave evidence tending to show that the testator was of sound mind when he made the same. This *31left the case as it was before. The defendants then proved, without objection, that on the day the said will was made, the testator destroyed a former will which he had made, by which the premises in question were devised to the defendant George Wait, and it was ruled by the judge, that if the testator was incompetent to make a valid will when the last will was made, he was incompetent to revoke a will made before; and if the last will was invalid because made when the testator was of unsound mind, the defendant George Wait had a title under the former will. The judge was right in this. The destruction of a will by a testator is not a revocation of the will, unless he intends thereby to revoke the will. (2 R. S. 64, § 42.) A madman can have no such intent. 2 R. R. 48, § 74, does not apply to this case. That applies only to a case where a will may be established before the chancellor, so that the surrogate may grant letters testamentary thereon. The motion for a new trial therefore is denied.
Motion denied.