dissenting:
I respectfully dissent and would reverse the order dismissing the complaint for failure to state a cause of action.
The majority recognizes an exception to the rule that economic losses cannot be recovered in legal malpractice negligence actions, i.e., since Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, the Illinois Supreme Court has allowed such recovery where the attorney defendant owed some extracontractual duty to the injured party. See 2314 Lincoln Park West Condominium Association v. Mann, Gin, Ebel & Frazier, Ltd. (1990), 136 Ill. 2d 302, 317-18, 555 N.E.2d 346, 353, citing McLane, 131 Ill. 2d 509, 546 N.E.2d 499 (recovery allowed where nonclients showed they were intended beneficiaries of the attorney-client relationship); Ogle, 102 Ill. 2d 356, 466 N.E.2d 224.
Plaintiff sought to fit herself within that exception here, but in die view of the majority, plaintiff failed to adequately allege that the relationship between Charles Rutkoski and the attorney defendant ¡vas primarily for the benefit of Charles as a beneficiary of the estate. Charles was executor of the estate of his brother, Alexander Jutkoski, and also a beneficiary of Alexander’s estate. The majority lotes that the primary duty of the attorney for an estate usually is to ;he executor of the estate, not to the beneficiaries.
The complaint alleges that defendant “undertook the performance >f legal services for Charles Rutkoski” regarding the handling of the estate of Alexander Rutkoski, that Charles was the executor and a leneficiary of that estate, that defendant breached his duty by failing ;o make an election under section 2032(a) of the Internal Revenue Jode of 1939 (26 U.S.C. §2032(a) (1988)), and that as a result of defendant’s negligence “Charles Rutkoski suffered damage for the reason that his share, as a beneficiary of the estate, was reduced.” The complaint does not specify whether defendant breached a duty to Charles as beneficiary or as executor, but it does allege the damages suffered by Charles were in his role as beneficiary. The complaint does not allege that defendant’s representation was primarily intended to benefit Charles as a beneficiary, but such an allegation would be a conclusion anyway.
A trial court should dismiss a cause of action on the pleadings only if it is clearly apparent that no set of facts can be proved which will entitle a plaintiff to recover. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 504, 565 N.E.2d 654, 657; Meerbrey v. Marshall Field & Co. (1990), 139 Ill. 2d 455, 473, 564 N.E.2d 1222, 1230; Ogle, 102 Ill. 2d at 360-61, 466 N.E.2d at 226 (count against attorney who drafted will adequately stated third-party beneficiary/ breach of contract theory); cf. In re Beatty (1987), 118 Ill. 2d 489, 499, 517 N.E.2d 1065, 1070 (“While a pleading will not be held to be bad in substance if it contains sufficient information as will reasonably inform a defendant of what he must defend against, that liberality of pleading will not relieve the necessity that a complaint contain sufficient, factual averments and set out every fact essential to be proved”); Pelham, 92 Ill. 2d 13, 440 N.E.2d 96 (dismissal of complaint for failure to state cause of action for attorney malpractice affirmed where complaint did not allege sufficient facts to prove primary purpose of attorney-client relationship was to benefit third party); see also R. Michael, Illinois Practice §§23.1, 23.3, 27.4 (1989).) In Meerbrey, false arrest and imprisonment counts which the trial court had dismissed for failure to sufficiently allege defendant was acting without reasonable cause were held sufficient on appeal, “[i]n view ol the statutory directive in section 2 — 603 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 603(c)) that ‘[pjleadings shall be liberally construed with a view to doing substantial justice between the parties.’ ” Meerbrey, 139 Ill. 2d at 474, 564 N.E.2d at 1231.
Although the generally accepted rule is that an attorney drawing a will can be held liable for negligence by the intended beneficiary, an attorney representing the executor of an estate is generally held to have a duty only to that person, not to beneficiaries of the estate wit! whom he was not in privity. The reason for the latter rule is that the representative of an estate must be neutral and should not favor the interests of any claimants to the estate, whether an heir, a claimec beneficiary or a creditor. (2 Mallen & Smith, Legal Malpractice §§26.4, 26.5 (3d ed. 1989).) If an attorney for an executor could nevei have a duty to a beneficiary of the estate, then I would agree with the majority that this case was properly dismissed on the pleadings. I do not read the majority opinion to say that, however, and believe that in a proper case such a duty can exist. In Neal v. Baker (1990), 194 Ill. App. 3d 485, 551 N.E.2d 704, where a beneficiary’s complaint against the executor’s attorney was dismissed, there appeared to be a conflict between the plaintiff and other claimants. In some estates there may be no potential conflicts. There may be only one beneficiary, the potential heirs may be the beneficiaries, and there may be no creditors. In such cases the situation may be similar to that recognized in drafting a will, where the attorney’s mistakes most often harm not the client, but third parties. Even if some conflicts are possible here the issue before the court does not involve a conflict among estate claimants: an attorney for an executor always has a duty to prevent dissipation of the estate. Before this court’s opinion in Collins, the rights of third parties could be protected by a negligence action brought against the attorney by the executor. Since Collins, such an action in many cases is no longer possible and increased protection of third parties to whom the attorney owed an extracontractual duty may be necessary. In Neal, plaintiff could have sued the executor, who might have filed an action over against the attorney. Since this court’s decision in Collins, that is usually not possible.
When an executor employs an attorney, he certainly intends some eenefit for the beneficiaries of the estate. The executor may be more concerned that his improper performance would expose him to liabilty, but it is difficult to say an executor’s selfish concerns are greater ;han his concerns for a beneficiary, especially where the executor and ;he beneficiary are the same person. Assuming the exception for ex-;racontractual duties is measured by whether the plaintiff would qualfy as a third-party beneficiary in a contract action, it should be noted ;hat beneficiaries of an estate are more than “incidental” beneficia’ies as that term is used in the Restatement (Second) of Contracts >302 (1981).
The majority opinion in essence tells this plaintiff “we know what mu are trying to say, but you haven’t said it.” Much time is wasted in ;he trial courts attempting to determine whether what is said in one :omplaint could be better said in another. If plaintiff could never state i cause of action, then the case should be dismissed on the pleadings, f plaintiff can state a cause of action but uses imperfect language to lo so, the case should proceed to discovery where defendant will be ible to find out, not just the details of what plaintiff has alleged, but vhether those allegations have any basis in reality. In most cases a motion for summary judgment is a better way of weeding out merit-less cases than is a motion to dismiss.
Because it is not clearly apparent that no set of facts could be proved which would entitle plaintiff to recover, I would reverse the order of the trial court dismissing this complaint for failure to state a cause of action. A liberal view of the pleadings is especially appropriate where the state of the law is unclear. (Hagney v. Lopeman (1992), 147 Ill. 2d 458, 466, 590 N.E.2d 466, 470.) I believe this is such a case; the notice of appeal was filed in this case on October 29, 1991, just before a divided supreme court ruled on the appeal of this court’s opinion in Collins and before that court granted rehearing. At the very least this case should be remanded to give plaintiff an opportunity to amend.