dissenting.
A third party beneficiary is one intended to be benefited by an exchange of promises between a promisor and promisee. It is a journey into artifice to say, that an attorney scrivener of a will makes any promise to benefit a legatee of the will he writes for another.
The majority, anxious to formulate apotropaic remedies for future ills, has transcended the explicit issue of the *67instant case. Instead of addressing the question of a lawyer’s duty to a known, designated legatee of a will, who has acted in reliance on the attorney’s advice, and prescribing a remedy for the negligent performance thereof, they are off defending the rapidly eroding doctrine of privity.
Recent commentary1 and case law from other jurisdictions, clearly indicate that the continued existence of privity as a defense to an action in negligence is on very thin ice. This is particularly true in the case of a legatee who has been deprived of taking under a negligently drafted will. See Fickett v. Superior Court, 27 Ariz.App. 793, 558 P.2d 988 (1976); McAbee v. Edwards, 340 So.2d 1167 (Fla.Dist.Ct. App.1976); Licata v. Spector, 26 Conn.Sup. 378, 225 A.2d 28 (1966); Lucas v. Hamm, 56 Cal.2d 583, 364 P.2d 685, 15 Cal.Rptr. 821; Ross v. Caunters, (1980) 2 Q.B. 297, (1979) 3 W.L.R. 605 (1979) 3 All.E.R. 580. See also, Malen and Levitt, Legal Malpractice, § 79 at 153, (West Publishing Co.1981).
Indeed this Court in the seminal case of Lawall v. Croman, 180 Pa. 532, 37 A. 98 (1897) refused to apply the privity doctrine where to do so would immunize an attorney from a clear breach of duty to a known third party.
In Lawall the plaintiff had lent money to a borrower in return for a mortgage note. The plaintiff had been advised by the borrower’s attorney that she would hold a first lien as a security for the loan. She later discovered that rather than a first lien, she received a third lien which was essentially worthless. There was no evidence that the borrowers’ attorney acted wrongfully but clearly he had acted negligently in that he had failed to check the lien dockets. This *68negligence was compounded by the fact that the attorney had repeatedly assured the plaintiff that he had done so, and that she had clearly relied on his assurances in deciding to lend the money. Although plaintiff testified that she had never hired the defendant as her attorney, the court found that the attorney was acting to some extent on behalf of the plaintiff.
The Lawall Court held that the grant of a nonsuit based on the mere form of the relationship was improper; and that: “[Independent of the relation of attorney and client, .. . [if] defendant, knowing that plaintiff was relying on him in his professional capacity . . ., undertook to perform [a] duty, he was bound to do it with ordinary skill and care in his profession, and [he] would be liable for negligence in that respect.” Id. 180 Pa. at 540, 37 A. at 99.
This case presents an opportunity for this Court to establish a rule of sound principle and ample precedent, to wit: that where through the negligence of a lawyer scrivener of a will, a known designated beneficiary loses a legacy, the lawyer must answer in damages. Such a rule would obviate the need for employing a legal fiction, such as the majority’s reliance on third party beneficiary theory and, contrary to the fear of the majority, requires no factitious formulae. The formula is simple: a duty breached is a tort, and the remedy exists in an action in trespass.
Finally, I find it somewhat anomalous that the majority has embraced the policy concerns expressed in Ultramares v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931), since the Court of Appeals of New York has held that those policies are inapplicable where the negligence of a professional is directed to a “known” third party. White v. Guarente, 43 N.Y.2d 356, 401 N.Y.S.2d 474, 372 N.E.2d 315 (1977). In fact, New York courts have recently demonstrated a willingness to adopt a more modern approach. See Baer v. Broder, 106 Misc.2d 929, 436 N.Y.S.2d 693 (1981), aff’d. on other grounds 86 App.Div.2d 881, 447 N.Y.S.2d 538 (1982); Schwartz v. Greenfield, Stein and Weisinger, 90 Misc.2d 882, 396 N.Y.S.2d 582 (1977).
I agree with the Superior Court.
. See e.g. Probert, Hendricks, Lawyer Malpractice: Duty Relationship Beyond Contract, 55 Notre Dame Law 708 (1980); Legal Malpractice in Estate Planning — Perilous Times Ahead for the Practitioner, 67 Iowa L.Rev. 629 (May 1982); Note, Attorneys Negligence and Third Parties, 57 N.Y.U.L.Rev. 126 (April 1982); Attorney Negligence in Title Examinations and Will Drafting: Elimination of the Privity Requirement as a Bar to Recovery hy Foreseeable Third Parties, 17 New Eng.L.Rev. 955 (1981-82). See also, Note, Guy v. Liederbach: Expanding the Attorneys’ Duties Beyond the Limits of the Privity Requirement, 11 Cap.U.L.Rev. 643 (Spring 1982).