Opinion
No. 4347.
Submitted September 7, 1954.
Decided September 30, 1954.
Under the police retirement system (R. L., c. 221, as amended) benefits are payable only "in equal monthly installments on the first business day of each calendar month" and no authority is granted or to be implied to prorate benefits for a portion of a month in the event of death before expiration of the monthly payment period,
ASSUMPSIT, by the plaintiff as executor under the will of John J. Daley against the defendant Board to recover retirement benefits allegedly due to the estate under the provisions of R. L., c. 221.
Daley, a retired police officer of the city of Dover, was receiving retirement benefits under the above law at his decease. He received benefits until August 31, 1953. The executor's demand for benefits from September 1 to September 9, 1953, the date of Daley's death, was refused by the Board as the retirement benefits have not been prorated by it.
The matter was submitted to the Superior Court (Wheeler, C. J.) upon an agreed statement of facts. Defendant's exception to a verdict for the plaintiff was reserved and transferred.
Keefe Keefe for the plaintiff.
Louis C. Wyman, Attorney General and Richard C. Duncan, Assistant Attorney General, for the defendant.
Any right of the plaintiff to recover must be found in and measured by the provisions of R. L., c. 221. Cf. Desrosiers v. Company, 98 N.H. 424. This act provides (Laws 1953, c. 112, s. 1) for an assessment "upon the annual salaries of all permanent policemen who accept the provisions hereof . . . All assessments . . . shall be payable in equal monthly installments on the last business day of each calendar month. It shall be the duty of the treasurer . . . of the . . . city . . . to withhold from the monthly salary . . . and to pay the board an amount equal to the monthly assessment . . . All permanent policemen who shall accept the provisions hereof . . . agree that the treasurer . . . shall have the power to withhold from their monthly salaries. . . ." (Emphasis supplied).
Under section 7a as inserted by Laws 1953, c. 112, s. 2 "Any permanent policeman may provide for himself an additional retirement allowance by making special deposits . . . Upon his retirement . . . his accumulated special deposits shall be returnable to him in cash, or, at his election, part or all . . . may be taken as a monthly annuity." (Emphasis supplied).
Section 12 (Laws 1953, c. 112, s. 3) provides that a person entitled to benefits thereunder shall "receive from the retirement fund, for each year during the remainder of his life, a sum equal to one-half of his average annual salary for the five years next preceding his retirement . . . This shall be paid to him in equal monthly installments on the first business day of each calendar month." (Emphasis supplied).
It seems clear from the above that assessments for the retirement fund and the benefits to be paid thereunder are based on an annual amount divided into twelve equal monthly installments. The assessments are to be paid on the last business day of each calendar month and the benefits on the first business day thereof (succeeding month).
We cannot discover in this act any intention manifested by the Legislature to require retirement benefits to be paid on any basis other than a monthly basis nor at any other time than the first day of each month. It shows no legislative intent to depart from the usual rule applicable to annuities that they are not apportionable in respect of time and that if an annuitant dies before the day of payment his representative cannot claim any portion of the annuity for the current term. Silverman v. New York Life Ins. Co., 317 Mass. 101; Bartman v. Bartman, 411 Ill. 487. Cf. Russell v. Fabyan, 28 N.H. 543; Cashman v. Dumaine, 85 N.H. 467, 468.
Judgment for the defendant.
All concurred.