Opinion
No. 5183.
Argued November 6, 1963.
Decided December 3, 1963.
1. By virtue of the Policemen's Retirement System statute (RSA 103:16) the accumulated contributions made by a permanent policeman member who dies before becoming eligible for retirement, not as a result of an injury received in line of duty, belong to his estate.
2. The Policemen's Retirement System statute (RSA 103:15) providing for certain payments to minor children of a permanent policeman who dies before becoming eligible for retirement and is not survived by a widow is limited in its application to minor children under the age of eighteen.
Certification of the following question of law to the Supreme Court (RSA 547:30) by the probate court of Coos county (Harrigan, J.): "Did the fund which became payable by the Police Retirement Board, by reason of the death of Lawrence G. Massey, Sr., on March 19, 1961, constitute an asset of his estate, payable to his administrator, or did it constitute an asset of the estate of his minor son, Lawrence G. Massey, Jr., payable to the latter's legally appointed guardian?"
Counsel stipulated the following agreed statement of facts:
"1. Jean Paul Poisson, d/b/as Eagle Oil Company, is a creditor of the estate of Lawrence G. Massey, Sr. . . . his claim having been allowed by . . . Commissioner of Insolvency of said estate, and the Commissioner's Report having been filed and approved by [the probate court].
"2. Lawrence G. Massey, Sr., prior to his death, had for many years been a permanent policeman employed on full time by the Police Department of the City of Berlin, and had accepted the Provisions of RSA Ch. 103, establishing a Police Retirement System in the State of New Hampshire.
"3. At the date of his death, March 19, 1961, having died not as a result of an injury received in line of duty, Lawrence G. Massey, Sr., was a widower, and was survived by one son, Lawrence G. Massey, Jr., who was born on January 22, 1942.
"4. On July 17, 1961, the Police Retirement Board issued its check in the amount of $2,483.61 in payment of a lump-sum benefit computed in accordance with the provisions of RSA Ch. 103. This check was made payable to the order of Rejeanne Fletcher, guardian of Lawrence G. Massey, Jr. Shortly after it was received by the payee, the guardian was advised in writing by the Board that a clerical error had been made in issuing the check, and that the same should have been made payable to the administratrix of the estate of Lawrence G. Massey, Sr.
"5. The lump-sum benefit in the amount of $2,483.61 was included in the inventory of the guardianship of Lawrence G. Massey, Jr. with the notation that the Police Retirement Board claimed it should have been made payable to the estate of Lawrence G. Massey, Sr. Said lump sum was not included in the inventory of the assets of the estate of Lawrence G. Massey, Sr.
J. L. Blais for Jean Paul Poisson, d/b/a Eagle Oil Company, a creditor of the estate of Lawrence G. Massey, Sr., furnished no brief.
Arthur O. Dupont and Robert D. Calamari (Mr. Calamari orally), for Rejeanne D. Fletcher, guardian of the person and property of Lawrence G. Massey, Jr.
This is an agreed case in which counsel have stipulated the facts and the legal issue to be decided thereon "in order that the above estates may be settled as expeditiously and inexpensively as possible." In re Peterson Estate, 104 N.H. 508. See Annot. 97 A.L.R. 301; Powell v. T. A. C. Taxi Co., 104 N.H. 428; Lariviere v. New Hampshire Fire Ins. Co., 105 N.H. 73.
In this case the deceased policeman died from natural causes and "not as a result of an injury received in line of duty." At the time of his death he "was a widower and was survived by one son, Lawrence G. Massey, Jr." who was then nineteen years of age. The payment of the $2,483.61 by the Police Retirement Board represents a refund of the payments made by the deceased policeman before he became eligible for retirement, although it has been referred to in the record as a "lump-sum benefit" or a "lump sum" or "the fund." The pertinent part of the controlling statute (RSA 103:16) provides as follows: ". . . and the estate of any such permanent policeman who may die before becoming eligible for retirement, not as the result of an injury received in line of duty, shall be entitled to receive from the retirement fund all payments made thereto by him. . . ." (Emphasis supplied). It is reasonably clear from this section that the payment of $2,483.61 belongs to the estate of the deceased policeman, Lawrence G. Massey, Sr. and not to the guardian of his nineteen-year-old son.
The guardian of the son contends, however, that a liberal reading of the compensation section (RSA 103:15; Laws 1957, 189:4) should prefer any minor child under twenty-one years of age over creditors "even though the statute does not state this explicitly." The difficulty with this argument is that that section, if controlling, specifically limits the payments to a minor child "under the age of eighteen years" or until he shall "reach the age of eighteen years." This limitation on payments to minors has been consistently followed from the time of the first policemen's retirement act. Laws 1941, c. 166, s. 13; R. L, 221:13; RSA 103:15; Laws 1957, 189:4. We can agree that retirement statutes should receive a hospitable construction in cases of doubt but this is not a roving judicial commission to override specific legislative limitations under the guise of statutory interpretation. Wesson v. Nashua Police Ass'n, 103 N.H. 104; Opinion of the Justices, 102 N.H. 75; Keefe v. Retirement Board, 99 N.H. 224.
The probate court is advised that the fund which became payable by the Police Retirement Board, by reason of the death of Lawrence G. Massey, Sr., on March 19, 1961, constitutes an asset of his estate payable to his administrator.
Remanded.
All concurred.