¶1with whom Grimes, J., joins, dissenting:
¶2I would hold that the defendant effectively withdrew her renunciation and that her motion for a directed verdict should havé been granted.
¶3The majority opinion declines to consider the issue of withdrawal on the ground it was not effectively raised below. The record indicates however that in her motion for a directed verdict the defendant argued she never “effectively released control of the joint bank account,” and the plaintiff requested an instruction (which was denied) on the irrevocability of a renunciation. In my opinion the issue was fully and fairly raised and should have been acted upon by the trial court. In any event it is clearly before us now.
¶4It is undisputed that the defendant was in a strained emotional and physical state; her mother had died only shortly before, and she, herself, was recently released from the hospital. Her renunciation was informally delivered to her attorney, her attempted withdrawal expeditiously made, and there was no evidence or in*347dication of detrimental reliance by adverse parties. Fairness requires that withdrawal be permitted under these circumstances. Parenteau v. Gaillardetz, 103 N.H. 92, 166 A.2d 112 (1960), relied on by the plaintiff, is not authority to the contrary. In that case the surviving tenant never renounced her interest in the passbook, so the issue of withdrawal was not presented.
¶5In a line of New York cases it has been held that withdrawal of the renunciation of testamentary bequests should be permitted where the adversary parties have not changed their position on the retraction and the withdrawal does not adversely affect the legal or equitable rights of any beneficiary. In re Angel’s Will, 33 Misc. 2d 122, 225 N.Y.S.2d 419 (Surr. Ct. 1962); In re Johnston’s Will, 164 Misc. 469, 298 N.Y.S. 957 (Surr. Ct. 1937); see 6 Page, Law of Wills § 49.11 (W. Bowe & D. Parker rev. 1962). This would seem to be the better rule in that there should be sufficient flexibility in the law to allow for the fact that “ [r] enunciations are often made without due consideration of the consequences and are likely to be influenced by emotional circumstances surrounding the testator’s death. Moreover, strict enforcement... is hardly calculated to execute the purpose of the testator, who normally intends that the testamentary beneficiary shall receive his property.” 47 Yale L.J. 487, 489 (1938).
¶6The result reached today is an unduly harsh one to a defendant who I believe is entitled to prevail as a matter of law.