dissenting.
I respectfully dissent from the majority opinion in this case.
I do agree with the majority in their statement that the order denying summary judgment was appealable, pursuant to Indiana Appellate Rule 4(B)(5)(b). I also accept the position of the majority in their finding that the action in this cause is in tort and that the two-year statute of limitations is applicable.
I dissent from the majority opinion as to when the statute of limitations began to run. In holding that the statute of limitations had not yet run, the Court of Appeals cited the case of Price v. Holmes, (1967) 198 Kan. 100, 422 P.2d 976. The majority opinion also cites the Kansas case, but takes the position that it is in error. The majority states, “The fallacy in the Kansas opinion is the conclusion that there has been no injury done until the Supreme Court said so.” The majority takes the position that the injury occurs when the will is probated and that the named beneficiary in the will must within two years commence an action against the drafters of the will concerning any malpractice resulting in a detriment to the beneficiary.
The majority cites the case of Schmidt v. Merchants Dispatch Transp. Co., (1936) 270 N.Y. 287, 200 N.E. 824, 104 A.L.R. 450. In substance, this case holds that a person inhaling dust which subsequently damages his lungs, must bring his cause of action within two years of his first inhaling the dust. The writers of the opinion observe that even though the effects of breathing the dust may not be known to the plaintiff for several years, he is nevertheless first impinged upon inhaling the dust and must bring his cause of action within the statute of limitations of that date.
I cannot accept this proposition of law, but in any event feel that it is not in point with the issues presented in this case.
*295The majority also cites the case of The Board of Commissioners of Wabash County v. Pearson, (1889) 120 Ind. 426, 22 N.E. 134. The case concerns the construction of a bridge in 1871 which collapsed and injured Pearson in 1884. The court held the statute of limitations did not commence to run until the right of action accrued and that did not occur until Pearson was injured by the collapse of the bridge, notwithstanding the fact that the negligence had occurred some thirteen years earlier. The majority draws what I perceive to be an erroneous parallel between that case and the case at bar. The majority takes the position that in the case at bar the impingement to the plaintiff first occurred when the will was probated. Thus, likening that incident to the incident of the collapse of the bridge. If we draw a parallel between the two cases, it would seem the negligence in constructing the bridge parallels the negligence, if any, in constructing the will. The probate of the will would parallel the opening of the bridge to traffic. The collapse of the bridge parallels the decision of the Probate Court in holding that the bequest to the plaintiff was void and of no force and effect. To hold otherwise places the beneficiary under a will in an impossible position. Upon probate of the will, he presumes he is to benefit under the will, thus he bides his time waiting for the proper authority to fulfill the bequest. Some time later, he learns that the administrator of the estate has no intention of fulfilling the bequest. He still takes the position the bequest is valid and institutes proceedings in the Probate Court for enforcement of the bequest. At this time his bridge is still standing, and he is taking the position that it is sturdy enough to support him in his position. He, of course, would take the position that the attorney who drafted the instrument drafted a perfectly valid instrument. It would be unthinkable for him at that time to bring an action against the attorneys for drafting a bad instrument. His bridge does not collapse until the Probate Court makes a decision that the bequest in the will is unenforceable, and that he will take nothing under the terms of the will. Only then is he in a position to turn his attention to the drafters of the instrument which has failed him.
Even if it is assumed for the sake of argument that the impingement occurred when the will was probated, one must consider the “discovery rule” as applied to this case.
The majority seeks to bolster its opinion by citing Heyer v. Flaig, (1969) 70 Cal.2d 223, 74 Cal.Rptr. 225, 449 P.2d 161. An analysis of Heyer and its progeny lead one to conclude that if the California Supreme Court were faced with the facts in the case at bar, it might well conclude that the statute of limitations did not begin to run until the challenged provision of the will was declared void.
One reason for concluding that the statute began to run upon the date of the death of the testatrix was because the plaintiff could not have brought an action before that time. “A statute of limitations does not commence to run until a cause of action accrues, and ‘a cause of action * * * invariably accrues when there is a remedy available’ ”. Heyer v. Flaig, supra at 230, 74 Cal.Rptr. at 231, 449 P.2d at 166, quoting Irvine v. Bossen, (1944) 25 Cal.2d 652, 658, 155 P.2d 9, 13. Unlike the instant case, the negligence of Flaig was discoverable upon the death of the testatrix. The Heyer sisters alleged that the testatrix retained Flaig to prepare her will. She told defendant that she wanted her entire estate to pass to her two daughters. She also informed Flaig that she planned to remarry in a few weeks. The will purported to leave the entire estate to the plaintiffs. However, the will did not mention the testatrix’ husband to be, except that it named him as executor. Under a California statute a spouse can be disinherited only if “. . . the spouse is provided for in the will, or in such a way mentioned therein as to show an intention not to make such a provision; and no other evidence to rebut the presumption of revocation can be received.” Cal.Probate Code § 70 (West). Thus, in the Heyer case, once the will was admitted to probate it was evident to the sisters that *296the will was drafted in such a way as to reduce their share of their mother’s estate — a result which was clearly contrary to her intentions.
In the instant case, plaintiff could not have known that the particular clause in the will was ineffective until the court determined that it was void. It would be strange indeed to require a potential beneficiary under a will to file suit alleging that the portion of the will which apparently benefitted him is void before the validity of the provision has been determined by a court. Yet, this is what the majority seems to require.
Aside from the factual dissimilarities between Heyer and the case at bar, an examination of California cases decided since Heyer indicates that the majority has erroneously relied on California law to support the proposition that the statute of limitations in the instant case began to run at the time of death of the testatrix.
In Heyer, the California Supreme Court began to depart from the majority rule which sets the commencement of the statute of limitations at the time of the negligent act. The Court began to acknowledge, without fully accepting, the emerging “discovery rule”. According to the discovery theory, the statute of limitations in such cases runs from the date the negligence was, or should have been, discovered.
The California Court did not mention the discovery rule in the text of Heyer; rather, it alluded to it in a footnote. There the Court stated that “[t]he judicial rule against postponed accrual of the statute of limitations in legal malpractice actions is set upon a tenuous basis.” Heyer, supra, at 223, fn. 7, 47 Cal.Rptr. at 233, fn. 7, 449 P.2d at 168, fn. 7.
The California Court did not fully embrace the discovery rule until later. In Neel v. Magana, Olney, Levy, Cathcart & Gelfand, (1971) 6 Cal.3d 176, 98 Cal.Rptr. 837, 846, 491 P.2d 421, 430, Justice Tobriner concluded that “in an action for professional malpractice against an attorney, the cause of action does not accrue until the plaintiff knows, or should know, all material facts essential to show the elements of that cause of action.” Neel, rather than Heyer, is the key California case with respect to the statute of limitations in legal malpractice actions. See also Horne v. Peckham, (1979) 97 Cal.App.3d 404, 158 Cal.Rptr. 714.
In the case at bar, Dwyer had no way of knowing whether the challenged provision was unenforceable until the Probate Court rendered its decision. The clause provided that Angelicchio, the testator’s business partner, would continue to employ plaintiff until she retired. This much, Angelicchio did. Not until she retired did she learn that the portion of the clause requiring Angelic-chio to pay her $500.00 a month after she retired might be unenforceable. And until the provision was declared void, she had every reason to claim validity of the clause.
Faced with a similar factual situation, the Supreme Court of New Mexico applied the discovery doctrine. Jaramillo v. Hood, (1979) 93 N.M. 433, 601 P.2d 66. As in the case at bar and Heyer, Jaramillo involved a suit by a disappointed beneficiary against the drafter of a will. The will was prepared on April 28, 1967. The testator died on October 6, 1967. On November 22, 1967, the will was admitted to probate. Appellant changed attorneys on January 22, 1968, March 26, 1969, and August 2, 1971. The order admitting the will to probate was set aside nunc pro tunc on April 14, 1969. Appellant did not file her complaint until May, 1977. As to the date when the statute of limitations began to run, the Court stated:
The harm or damage in this case arose at the time the testatrix died. However, the cause of action did not accrue until the harm or damage was ascertainable or discoverable. In this case appellant was in a position to ascertain or discover the harm or damage to her as a result of the alleged defect in the execution of the decedent’s will each time she changed attorneys, and also at the time the court set aside the order admitting the will to probate. Jaramillo, supra, at 434, 601 P.2d 67.
*297While it appears that the majority of states adhere to the rule that the statute of limitations on a legal malpractice claim begins to run from the date the negligent act occurred, 18 A.L.R.3d 978 (1968), several states, besides California and New Mexico, have recognized the discovery rule. Niedermeyer v. Dusenberry, (1976) 275 Or. 83, 549 P.2d 1111; Cameron v. Montgomery, (1975) Iowa, 225 N.W.2d 154; Succession of Killingsworth, (1972) La.App., 270 So.2d 196; Hendrickson v. Sears, (1974) 365 Mass. 83, 310 N.E.2d 131; Kohler v. Woollen, Brown & Hawkins, (1973) 14 Ill.App.3d 455, 304 N.E.2d 677; Peters v. Simmons, (1976) 87 Wash.2d 400, 552 P.2d 1053; Edwards v. Ford, (1973) Fla., 279 So.2d 851; Sorenson v. Pavlikowski, (1978) Nev., 581 P.2d 851; McKee v. Riordon, (1976) 116 N.H. 729, 366 A.2d 472; Mumford v. Staton, Whaley and Price, (1969) 254 Md. 697, 255 A.2d 359.
The Supreme Court of Appeals of West Virginia has made perhaps the most poignant statement by a court justifying the application of the discovery rule:
We are inclined to agree with the defendant that it is the majority view in this country that as a general proposition the statute of limitations begins to run from the date of the commission of the act of professional malpractice rather than from the date of discovery. However, we do not agree with the defendant’s cavalier dismissal from consideration the cases which subscribe to the so-called minority view. We do not equate an “overwhelming number of cases”, as expressed in the defendant’s brief, with justice and right. Family Savings & Loan, Inc. v. Ciccarello, (1974) W.Va., 207 S.E.2d 157.
Likewise, in the instant case, appellant blithely states that the holding in Price v. Holmes, (1967) 198 Kan. 100, 422 P.2d 976, which is but one case where the discovery rule was applied in a legal malpractice situation, “is an aberrational holding” and that “cases from other jurisdictions . . . reveal that Price v. Holmes is an aberrational result.” I cannot agree with this assertion. Whether the impingement occurred when the Probate Court rendered its decision or was discovered at that time is of little moment; in either event the statute of limitations in the case at bar should not be deemed to commence until the date the clause in the will was declared void. Accordingly, I dissent from the decision of the majority insofar as it holds that the statute of limitations began to run from the date of death of the testator.
PIVARNIK, J., concurs.