Murdock v. Nelms

• Decision Date: 17 January 1972
• Citation: 186 S.E.2d 46,212 Va. 639
• Parties: Betty Nelms MURDOCK v. Allen T. NELMS, etc., et al.
• Court: Virginia Supreme Court

Page 46

186 S.E.2d 46

212 Va. 639

Betty Nelms MURDOCK v. Allen T. NELMS, etc., et al.

Supreme Court of Virginia.

Jan. 17, 1972.

Beverley H. Randolph, Jr., Richmond, E. Griffith Dodson, Jr., Roanoke (Peyton, Beverley, Scott & Randolph, Richmond, Dodson, Pence, Coulter, Viar & Young, Roanoke, on brief), for appellant.

William R. Rakes, Roanoke (R. R. Rush, Gentry, Locke, Rakes & Moore, Roanoke, on brief), for appellees.

Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.

HARMAN, Justice.

This is an appeal from the action of the trial court in holding that Nancy Norma Nelms (Nancy) had effectively changed her beneficiary of certain life insurance and retirement benefits and in refusing to impress a resulting trust on the funds which later became payable therefrom in favor of Betty Nelms Murdock (Betty), who was the beneficiary prior to such changes.

In the trial court factual issues of Mancy's mental capacity and of fraud and undue influence on the part of Allen T. Nelms (Allen) were raised. It is sufficient to say that these factual issues were resolved against Betty by the trial court and, after a careful review of the record, we find no error in these holdings.

Nancy was a school teacher who had been employed for many years by the Roanoke School Board. As a teacher she was entitled to purchase group life insurance and to participate in a retirement program, both of which were administered by the Board of Trustees of the Virginia Supplemental Retirement System (Board).

In 1963 Nancy designated Betty as the beneficiary of her group life insurance policy and of survivor's benefits under the retirement plan. In order to change her beneficiary it was necessary for Nancy to execute a written designation of such change before a person authorized to take acknowledgments and to file the same with the Board.

On February 20, 1967, Nancy, who was then hospitalized with a cancer which was terminal in nature, signed a change of beneficiary for her life insurance and retirement benefits on forms provided for that purpose by the Board. At the time Nancy signed the forms they were blank except for her signature. When the forms were signed by Nancy only Allen was present.

Later the same day Allen took the signed forms to the office of the Roanoke School Board where he delivered them to Marieta S. Reed (Reed), an employee, who was a Notary Public. Allen, at Nancy's direction, told Reed of Nancy's desire to change her beneficiary to each of the benefits from Betty to Nancy's estate. Both forms, with the change of beneficiary and other information set forth in the appropriate blanks, were filed by mail with the Board in Richmond on February 23, 1967.

The certificates, signed in each instance by Reed, read as follows:

'On this 20th day of February, 1967, Nancy C. Nelms, whose name is signed to the foregoing instrument, personally appeared before me, acknowledged the foregoing signature to be his and having been duly sworn by me, made oath that the statements made in the instrument are true.'

Betty argues that the changes of beneficiary were ineffective because they were not properly acknowledged. ¹ Other than the certificate itself, the only evidence in the record about the acknowledgment is from Allen, who delivered the forms to Reed.

His testimony it that regard is as follows:

'Q. When did the Notary come?

'A. I took the papers over to the School Board office and this lady who had notarized other papers and the Power of Attorney for Nancy, she notarized it.

'Q. In other words, the Notary never asked her if she acknowledged this to be her signature?

'A. She knew her signature. She had notarized the Power of Attorney and maybe other papers.

'Q. She never actually talked to your sister?

'A. No.

The trial court, who say and heard him testify, interpreted Allen's testimony to mean that the Notary was not present when Nancy signed the forms instead of an absolute statement that the Notary did not properly take the acknowledgment after the papers were left with her. As the trial court pointed out in its opinion, the record is silent on what occurred after the forms were delivered by Allen to Reed. We do not know who provided and filled in the information that was not on the forms at the time they were handed to Reed by Allen. ² The record does not show where or under what circumstances the Notary's certification was completed. ³ We do not know who mailed the completed forms to the Board in Richmond.

It is settled in Virginia that taking and certifying of acknowledgments is a judicial act. Where it is admitted or established that there was an appearance before the certifying officer, his determination of the matters involved has the conclusive force and effect of a judgment and imparts absolute verity, and cannot be collaterally attacked. It cannot be impeached, even directly, save in a court of equity, and not then except for fraud. Martin v. Williams, 194 Va. 437, 445, 73 S.E.2d 355, 359 (1952); New v. H. E. Harman Coal Corp., 181 Va. 627, 634, 26 S.E.2d 39, 42 (1943); McCauley v. Grim, 115 Va. 610, 612, 79 S.E. 1041, 1042 (1913).

But where, as here, the attack upon the acknowledgment rests upon nonappearance before the certifying officer, no fraud need be shown. Le Mesnager v. Hamilton, 101 Cal. 532, 35 P. 1054 (1894). A certificate of acknowledgment may always be impeached by showing that the person who is alleged to have executed the instrument in question never appeared before the certifying officer and never actually...