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In Re Estate of Ragen





APPEAL from the Circuit Court of Cook County; the Hon. BENJAMIN E. NOVOSELSKY, Judge, presiding.


Petitioner, Robert E. Ragen, brought an action for the admission into probate of a will codicil allegedly executed by the decedent, James M. Ragen. The trial court denied admission of the purported codicil to probate, finding that the decedent's signature had been forged. On appeal, petitioner contends that the trial court erred (1) in allowing the testimony of handwriting experts to prevail over the uncontested testimony of the attesting witnesses; (2) in admitting the testimony of the estate's attorney over petitioner's claim of an attorney-client privilege; and (3) in admitting Virginia Ragen's discovery deposition as evidence at the hearing for the admission of the codicil to probate. We affirm the trial court's judgment.

James M. Ragen, Jr., petitioner's brother, died in a Singapore hospital in October 1973. His will, dated July 2, 1968, was admitted to probate in the Cook County Circuit Court on September 17, 1974. The will bequeathed most of his estate to a charitable trust, with smaller bequests to his brothers and sisters. Before the pending petition was filed, two other actions were brought against the estate. The first was a will contest filed by decedent's two daughters, who were disinherited under the will. They settled for $100,000 each. The purpose of the second petition was to amend heirship, filed on behalf of decedent's alleged illegitimate child, Ray-Chuen Chang. The trial court granted the petition to amend, finding that Ray-Chuen Chang was the daughter of James Ragen. On appeal, we reversed the judgment on the ground that the court had applied the wrong legal standard to the evidence, and remanded for further proceedings. In re Estate of Ragen (1979), 79 Ill. App.3d 8, 398 N.E.2d 198.

The subject of the pending litigation is a purported codicil to decedent's 1968 will. The three-page document is dated September 2, 1972, but was not discovered until July 14, 1978. This codicil changes the bequests and eliminates the charitable remainder trust. Under its terms, petitioner Robert Ragen receives 40% of his brother's estate. Virginia Ragen, decedent's sister and co-executor of the original will, receives 10%. Decedent's three other sisters and two daughters also receive 10% each.

On September 18, 1978, shortly after discovering the codicil in his brother's suitcase, Robert Ragen filed a petition to admit the document to probate in the Cook County Circuit Court. In October 1978 the attorney general filed objections to the petition on the grounds that decedent's signature on the codicil was not genuine. Two months later, following pretrial discovery, respondent Ray-Chuen Chang also filed objections to admitting the codicil to probate.

The hearing began on December 14, 1978. Petitioner Robert Ragen first called Joan Ruggerio, one of the witnesses who attested the purported codicil. She testified that she had visited Robert Ragen's houseboat in Miami Beach, Florida, on September 2, 1972. Ruggerio stated that she was a social and business friend of Robert Ragen and had met the decedent, James Ragen, two or three times before seeing him on the houseboat on September 2, 1972. During her visit that day, she testified, the decedent asked her to witness the codicil. He told her the document was an addition to his will. She saw him sign it and then signed her own name. Frank O'Connor, an attorney who also witnessed the document, was also present. Ruggerio further testified that she believed that James Ragen was of sound mind when he executed the document. On cross-examination she admitted that she "assumed" that the first two pages of the codicil were the same two that James Ragen had signed on September 2, 1972, but could not be certain.

The next witness, Alex Gordon, testified that he is an attorney licensed to practice in Florida. He shared office space with Frank O'Connor, since deceased, for over 30 years. He further testified that he was familiar with O'Connor's signature, having seen it on hundreds of documents. He identified O'Connor's signature on the attestation page of the three-page document. Although he did not recall ever having seen the decedent or any document relating to him, he stated that he and O'Connor had maintained separate files. Petitioner Robert Ragen, a Florida resident, then testified in his own behalf. He said he first saw the codicil on July 14, 1978, in his attorney's office in Miami Beach, where he had brought the decedent's suitcase to be inspected. He identified a copy of decedent's will, which he said was attached to the codicil when he first saw it in his brother's suitcase. He had seen the suitcase at the Singapore hospital at the time of his brother's death. Ragen testified that he did not look inside the suitcases at any time and that nuns at the hospital packed and strapped them together for shipment to Virginia Ragen's house in Chicago. They remained there until July of 1978, at which time they were sent to her Florida home. Petitioner and his attorney, Gordon Taylor, removed the suitcases from Virginia's home and took them to Taylor's law office. There, petitioner found the purported codicil in an envelope. He and Gordon Taylor brought it to Chicago and filed it.

After petitioner rested his case, respondent Ray-Chuen Chang called Robert Ragen as an adverse witness. He testified that he came to Chicago in February 1978 to testify in the heirship proceedings involving Ray-Chuen Chang. He gave Attorney Grossi some of decedent's papers, which he claimed were given to him by Jimmy So, decedent's secretary. The papers included a child's photograph and other things which he thought might be relevant to Ray-Chuen Chang's heirship action. During his stay in Chicago he did briefly visit Virginia Ragen's home (where decedent's suitcases were stored at the time), but did not remain in her home for more than a few minutes. Regarding the execution of the codicil, petitioner testified that decedent, Joan Ruggerio, and Frank O'Connor were on his houseboat in Miami Beach on September 2, 1972, but that he was not present when the codicil was signed. He said he knew nothing about it until July 14, 1978, when he and his attorney found it in decedent's suitcase.

Attorney Grossi, one of the estate's attorneys, next testified. Petitioners objected on the basis that the attorney-client privilege barred Grossi from divulging any information that petitioner had given him during the February 1978 heirship proceedings. The trial court held that no attorney-client privilege existed and ordered Grossi to answer counsel's questions. He testified that petitioner gave him two packets of decedent's papers for possible use in the February 1978 heirship hearing. Ragen delivered the first packet on the day he arrived from Florida. Grossi believed that the second packet, delivered two days later, may have come from Virginia Ragen's home in Chicago. Included in this second packet was decedent's bill from a New York hotel, dated September 4, 1972. *fn1

The next witness, William R. Dillon, was decedent's attorney for 30 years. On August 31, 1972, he had a telephone conversation with his client, who was in New York at the time. Dillon made some calls to Florida on September 1, 1972, at decedent's request. He testified that he had never heard of the Florida lawyer, Frank O'Connor, and that the decedent had never mentioned the codicil to him. Dillon further testified that decedent had asked him about the impact that the birth of the child in Taiwan would have upon his will. Dillon stated that he was familiar with James M. Ragen's signature and identified some of the exemplars. When shown the contested signatures on the codicil Dillon noted that, while it bore some similarities to his client's signature, he had doubts it was genuine because the tails of the letters "J" and "g" were not "ballooned out" as much as usual.

Robert A. Cabanne, an expert examiner of questioned documents, next testified. After examining decedent's signature on the will and 90 other exemplars of his signatures, Cabanne compared them with the two signatures on the purported codicil and concluded the latter were forgeries. He testified in detail from his examination and from nine photographs of the signatures.

Donald Doud, *fn2 another expert examiner of questioned documents, testified that the signatures on the codicil had not been executed by the decedent. His conclusion was based on a comparison of the questioned signatures with the 90 exemplars and the signature on the original will. He also testified that the photographic transparencies of the name "James" on pages one and two of the codicil matched up very closely, although he could not state positively that the signatures were traced.

In addition to the testimony adduced at the hearing there were two depositions introduced into evidence. Virginia Ragen's deposition was taken in Florida after the court was advised that her health prevented her from travelling to Chicago for the trial. According to her testimony, decedent's suitcases had been shipped to Chicago from Singapore with James Ragen's body. In her home in Chicago, she had opened them but did not look through them carefully. They remained in her home in Chicago until June 1978, when they were shipped to her home in Florida. She added that Robert Ragen and his attorney, Gordon Taylor, came to her home to examine the contents of the suitcases and took them to Taylor's law offices, where they found the codicil.

The second deposition was that of James McGowan, manager of the New York hotel at which decedent had presumably stayed during the 1972 Labor Day weekend. McGowan identified decedent's September 2, 1972, hotel bill, which stated that Ragen had checked into the hotel on August 30, 1972, and planned to stay for three weeks. McGowan testified that it was the hotel's custom to post charges on the bills for each day of a person's stay. The September 2, 1972, bill indicated an accrual of $218.09. The bill reflected additional amounts for a long-distance telephone call and a restaurant charge. McGowan further identified a $200 check, dated September 2, 1972, made payable to the hotel. According to McGowan, in the normal course of business the hotel would stamp the backs of checks on ...

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