dissenting: I respectfully dissent from part III of the majority opinion. The majority conclude that the plan for Portsmouth Savings Bank’s conversion from mutual to stock form, with its immediate acquisition by Amoskeag Bank Shares, Inc., is unfair to Portsmouth’s depositors as a matter of law under N.H. Admin. Code Tru 505.03, and its adoption by Portsmouth’s trustees a violation of their fiduciary duty to the Bank’s depositors. The majority rest their conclusions on the Bank’s charter, and from its terms they proceed by a line of reasoning to which they find no impediment in existing law.
I, on the contrary, find the charter provisions inadequate to premise the majority result, and prior authority at odds with the majority holding. I dissent from both the result and the reasoning, which calls into question the legality of the most frequently used plan for stand-alone conversions of mutual savings banks, and which invites demands for cash distributions from surpluses that may have been accumulated over a century or more. As we face the likelihood of further litigation to probe the doubtful consequences of today’s decision, it behooves us to recognize that the uncertainty engendered by the majority opinion is magnified by an institutional weakness in the court’s procedure, which we should acknowledge and could mitigate in this case by respect for existing precedent.
The statements of fact in the majority opinion and the Chief Justice’s dissent obviate the need for anything but a précis here. Under *216the plan proposed by Portsmouth’s trustees and approved by a majority of the Board of Trust Company Incorporation, Portsmouth would first convert from a mutual to a stock (i.e., “guaranty”) form of corporate organization. Portsmouth would then issue all its stock to Amoskeag in exchange for cash equal to eighty percent of the proceeds of a new issue of Amoskeag stock, as to which Portsmouth’s depositors would have preferential subscription opportunities. Because of the remote possibility that Portsmouth could be dissolved at some future time after the conversion, the plan would also mandate the creation of a liquidation account to preserve the contingent interests of Portsmouth’s preconversion depositors in the Bank’s preconversion surplus. In the event of such a liquidation, preconversion depositors who remained depositors until liquidation would be paid the same amounts that they would have been entitled to receive if a liquidation had occurred at a time shortly before the conversion, as pro rata shares of surplus computed with respect to preconversion deposits not subsequently withdrawn. Although “surplus” as used in the record before us is not defined as a technical accounting term, it is clear that it refers to a net worth of some seventeen million dollars accumulated from earnings over the course of the Bank’s history.
Although the facts can thus be given briefly, the statement of issues calls for more extended care. In the language of the board’s applicable regulation, the plan must be “fair to the depositors.” Tru 505.03. All parties to this appeal have approached the question of what is “fair” in terms of the consistency of the plan with the depositors’ legally cognizable property interests. Proceeding on this analysis, the appellants in their brief have identified two features of the plan as objectionable. First, it “would result in a windfall to Amoskeag ... of the [Portsmouth] net surplus of Seventeen Million Dollars without any corresponding benefit being conferred upon the depositors of . . . Portsmouth.” Second, the failure to provide Portsmouth’s depositors with a preferential opportunity to purchase Portsmouth stock upon the Bank’s conversion would deny the “substantial equitable rights” of the depositors, in whom “all rights of ownership are vested.”
It is significant that the appellants do not claim that the “windfall” to Amoskeag would result from Amoskeag’s acquisition of the Portsmouth stock for less consideration than the Portsmouth depositors would pay if they were to acquire that stock in a stand-alone conversion. That is, the appellants do not claim that Amoskeag’s alleged windfall would be any greater than the windfall that would *217probably have benefited the subscribing depositors of Portsmouth if Portsmouth’s trustees had decided upon a stand-alone conversion.
Nor do the appellants explain how the existing record supports their assumption that they are likely to profit less from owning the Amoskeag stock to which they would have a preferential opportunity to subscribe, than from owning the Portsmouth stock to which they claim a preferential right to subscribe. In fact, there is some opinion evidence in the record that subscription to the Amoskeag stock would promise the greater profit, but we are in no position to assess this.
It is inferable, in any event, that the appellants believe that it would be more advantageous to subscribe to buy the Portsmouth stock directly. Underlying their position is another implicit assumption, that in a mutual savings bank’s stand-alone conversion, depositors customarily subscribe for stock at a price that the subsequent market price will soon exceed, and we may assume that a history of stand-alone conversions in New Hampshire would bear this out. When, then, the appellants object that Amoskeag would obtain its windfall “without any corresponding benefit being conferred upon the depositors of . . . Portsmouth,” they are in reality complaining that the depositors would not receive a windfall provided by a comparatively safe speculative opportunity to buy low and sell high.
If we assume with the appellants that any original transferee of the Portsmouth stock will probably obtain some windfall, this appeal poses the question whether Portsmouth’s depositors have a better legally cognizable claim to that windfall than does Amoskeag, as representing both its existing stockholders and subscribers to the proposed new issue of its own stock. If, indeed, Portsmouth’s depositors have no better claim than Amoskeag, nothing in the appellants’ arguments indicates that the trustees and the board otherwise lacked justification for adopting and approving the conversion-acquisition plan.
It is in addressing this issue, of the depositors’ and Amoskeag’s relative entitlements, that the appellants argue that depositors may demand preferential subscription rights to buy the Portsmouth stock in a stand-alone conversion because they already own the surplus that the new shares will represent. In their brief, the appellants assert that Portsmouth’s depositors “are the owners of the bank,” including its surplus, which Portsmouth’s charter “requires [to] be distributed to depositors,” each of whom owns a “respective share of the bank (sic) surplus net worth.” (If the appellants are correct, we might go further and ask why the depositors could not demand more than mere subscription rights. The appellants do not directly raise *218this question, however, although the majority opinion does so implicitly.)
As the appellants thus address the issue, the appeal should turn on whether Portsmouth’s depositors own its surplus, with the result that the preservation of their ownership justifies their claim as a matter of right to a preferential stock subscription opportunity. Although the majority of the court also pose the issue in terms of the depositors’ ownership, both the majority and the appellants foster confusion by doing so. By asking the wrong question, they invite the wrong answer.
It is hornbook law that ownership is in reality a bundle of rights to use and enjoy property, see Trustees &c. Academy v. Exeter, 92 N.H. 473, 485, 33 A.2d 665, 673 (1943); Superior Bath Co. v. McCarroll, 312 U.S. 176, 180-81 (1941), not all of which will necessarily be enjoyed by an “owner” or enjoyed simultaneously. See Burrows v. City of Keene, 121 N.H. 590, 598-99, 432 A.2d 15, 19-20 (1981). A risk of imprecision is always present, therefore, when we phrase an issue with such a compendious term as “ownership.” And when significant characteristics of ownership are found to be missing in a given instance, talk of ownership regresses from imprecision to eccentricity. Such is the case here.
The-act of making a deposit in a mutual savings bank produces no document or other explicit recognition of a property interest in anything but the deposit. The depositor has, of course, no legal title to the surplus or to the securities in which it may be invested. He did not bargain for any beneficial interest in the surplus or furnish any consideration for it beyond his act of deposit; during the period of his deposit he enjoys no right to transfer it to another, see Trustees &c. Academy v. Exeter supra, and any such interest would be subject to uncontrollable dilution resulting from the deposits of others; he will retain no beneficial interest if he withdraws his deposit, and he will receive no return for relinquishing it if he does make a withdrawal. Thus, it is patently clear that the appellants are wrong when they state that “all rights of ownership are vested” in the depositors, and it is equally clear that if the depositors could be said to own the surplus in any sense, that sense would be a highly peculiar and limited one.
To speak of a depositor’s ownership in this context therefore invites confusion. It invites another ill effect, as well, for it carries false suggestions about the range of choices that may confront us. On the one hand, to ask whether the depositors own the surplus is to suggest that they may not be entitled to benefit from it, or even be eligible to receive some benefit, unless they are the owners. This *219way of looking at the issue suffers from a tendency to obscure the widely differing sources of property interests. It tends to ignore the possibilities that depositors may be able to claim a benefit derived from surplus simply as a matter of contract, or to receive some benefit because statutory or common law gives discretion to trustees to make distributions that are justifiable on grounds of good commercial policy, quite independently of ownership or title. See, e.g., RSA 386-B:l, III (Supp. 1986). On the other hand, thinking in terms as broad as depositors’ ownership tends to ignore the possibility that, in managing a mutual savings bank’s surplus, the bank’s trustees may have obligations to segments of the public as well as to the bank’s depositors. Compare In re City Sav. Bank, 113 N.H. 378, 381, 309 A.2d 31, 32-33 (1973) with Barrett v. Bloomfield Savings Institution, 64 N.J. Eq. (19 Dick.) 425, 434, 54 A. 543, 546 (1903), aff’d, 66 N.J. Eq. (21 Dick.) 431, 57 A. 1131 (1904).
Clarity will not be served, therefore, by asking simplistically whether Portsmouth’s depositors own the surplus. Instead, we should ask whether the depositors have any interest in the surplus and, if so, whether the plan would recognize and protect it. Cf. RSA 386-B:l, III, :8, I (Supp. 1986). The trustees, of course, concede that the depositors have an interest in sharing in a pro rata distribution of the surplus upon the contingency of a solvent liquidation at some future time. Later in this opinion, I will speak of the authority for recognizing this interest, but it is sufficient here to note that the claims of the existing depositors arising from this possible contingency are preserved to them by the liquidation account.
Because these contingent interests are thus recognized and protected, and no other contingent interests are claimed, our question may be narrowed by asking whether Portsmouth’s depositors have any further, mature interests in the surplus. By a “mature interest” I mean a right, enforceable against the Bank, to the present enjoyment of the surplus or some advantage derived from its use, such as a right to receive a cash distribution, or to pledge some portion of surplus as collateral security, or the like.
If the answer is that they have no such mature interest, then by the terms of their own argument they will be without any right to protect it by a preferential opportunity to subscribe to purchase Portsmouth’s stock, which on conversion will represent the surplus. On like reasoning, if they lack any such mature interest, the trustees can have no fiduciary duty to protect it.
In addressing the question, I will not dwell on the terms of Tru 506.02, which I will assume would authorize what the plan provides. The question before us is whether the depositors’ have a mature *220property interest that would be infringed by the planned conversion-acquisition, whether or not it would be consistent with the board’s regulation. It is essential, then, to address the question directly, by examining the sources of authority relied upon by the appellants.
The appellants have cited three sources for the depositors’ asserted present ownership of surplus, and hence for a mature interest in it prior to any liquidation: the decision of the Supreme Court of the United States in Paulsen v. Commissioner, 469 U.S. 131 (1985), the terms of Portsmouth’s 1823 charter, and the holdings of New Hampshire cases culminating in the decision of In re City Savings Bank of Berlin supra. None of these authorities yields an affirmative answer to the question before us, however, and the last one speaks in the negative.
Neither the appellants nor the majority exhibit much vigor in suggesting that Paulsen supports the present ownership claim, and for good reason. The opinion in Paulsen included a comparative analysis of the debt and equity characteristics of a depositor’s respective interests in two banks, for the purpose of determining whether the owner of a deposit transferred in the merger of those banks enjoyed such a continuity of interest as would qualify the transaction for tax free reorganization treatment under 26 U.S.C. §§ 354(a)(1) and 368(a)(1)(A). When the Court looked beyond the deposit to the depositor’s broader relationships with the banks, it had occasion to analyze the characteristics of a federally chartered mutual savings and loan association, which was described as being obligated to make semi-annual distributions of “net earnings and any surplus,” and as owned by its depositors. Paulsen, supra at 134. This description tells us nothing, however, about the legitimate claims of depositors to the benefit of Portsmouth’s surplus, because Portsmouth is not a federally chartered savings and loan, and Paulsen is not in point. It is worth stating, nevertheless, in light of the majority’s broad-brush approach to the concept of ownership, that the Court ultimately concluded that the Paulsen depositors’ rights, including a limited right to vote and the right to share in a distribution upon the bank’s solvent liquidation, were “insubstantial” as ownership characteristics, Paulsen, supra at 140, and of “almost no value,” Paulsen, supra at 141. The Court quoted Society for Savings v. Bowers, 349 U.S. 143, 150 (1955), to the effect that the right to a distribution on solvent liquidation depends on such a remote contingency that its value as a property interest “reduces almost to the vanishing point.” To the degree, then, that Paulsen may carry any persuasive force in the controversy now before us, it recognized a depositor’s ownership of the bank assets in only the most theoretical *221sense, without any hint of the practical consequences claimed by the appellants before us.
The invocation of Portsmouth’s 1823 charter as the source of a
depositor’s mature interest in the operating mutual savings bank’s surplus calls for more extensive examination. The relevant portion of the charter provides that “the net income and profits of all deposits of money received by said corporation shall be paid out and distributed in just proportions, among the several persons by or for whom the said deposits shall have been made . . ..” Laws 1823, 27:2.
The appellants apparently believe that this language speaks for itself in their favor. They devote no analysis to it, but merely quote it in their brief and proceed to describe the conversion-acquisition plan as a violation of the charter’s “express language.”
The assertion that the charter’s “express language” resolves the case, however, simply denies the existence of the central issue raised by the appellants’ reliance on the charter language. The charter does not use the word “surplus,” and even if surplus is assumed to be covered by “profits,” see In re City Sav. Bank, 113 N.H. at 383, 309 A.2d at 33, the remaining language of the charter precludes any view that it “expressly” vests depositors with a mature interest in the surplus, that is, with an interest subject to an enforceable demand for its present realization or enjoyment. The provision quoted above describes the distributable “income and profits” as derived from “deposits” and describes the recipients of distributions of “income and profits” as “persons by or for whom the said deposits shall have been made.” The language therefore does not expressly confer any interest on a depositor entitling him to the distribution of any surplus of the operating bank except to the extent he can demonstrate that the profits or surplus are attributable to his own deposit. That is, the charter language grants a depositor an interest in the fruits of his deposit; it says nothing directly about any pro rata interest generally in a surplus accumulated over the years from the investment of other depositors’ funds.
My brothers in the majority chide me for this emphasis on the details of the charter’s language, however, and offer two responses to my close reading. They first try to reduce it to absurdity by arguing that my view would require the Bank “to maintain separate investments for each depositor, else each depositor would receive income derived from other deposits.” That is not, however, the implication of a provision that simply obligates the Bank to pay the depositors a return reasonably attributable to their deposits. In any case, the object of my careful reading is merely to demonstrate that the charter contains no express or explicit provision for depositors’ *222rights in surplus generally, however and whenever that surplus may have been derived. The charter is simply silent about what depositors may demand from assets they have not contributed directly or furnished indirectly in the form of income from their deposits.
This silence is a fact, and the majority opinion itself goes far to explain why the fact is not surprising. The opinion explains that “in the nineteenth century and early twentieth century surplus earnings of mutual savings banks did more than accrue — they were paid out to depositors.” There was no general statutory requirement for a savings bank even to accumulate a guaranty fund against losses until 1874. See Laws 1874, 71:5; RSA 386:9. And it was only recently that federal statutes and regulations may for a time have accelerated accumulations of surplus by placing limits on savings banks’ payouts, as the majority opinion describes in considerable detail. Hence, we can understand why the draftsmen of the 1823 charter did not make any clear or explicit provision for rights in or to surplus with a dimension that they probably did not anticipate.
The majority’s second response to my emphasis on the exact charter language concedes my point, however, for the majority proceed to an interpretive exercise. They argue that “[i]f the depositors were not to receive reasonable payments from surplus, then someone else would, which of course contradicts the . . . premise” that “[i]n 1823, mutual savings banks . .. existed by definition solely for the benefit of their depositors.” Thus, when the charter speaks of “income and profits” it must be read to include “surplus,” because the trustees would otherwise be authorized to pay out surplus to someone other than the depositors.
Three points about this argument are significant. First, its essence is that recognition of depositors’ ownership of the assets of the operating Bank would be consistent with the charter’s express provisions about the distribution of income and profits. Second, it leads the majority to hold unequivocally that the charter’s reference to “ ‘income and profits’ includes ‘surplus,’ ” and it is clear that “surplus” as the majority use the term means the net worth of seventeen million dollars now held by Portsmouth. I will consider the consequences of this holding later on. Third, whatever may be the merits of the majority’s interpretive argument, it would carry the greatest persuasive force on the assumption that the interpretive slate were otherwise clean. The slate is not clean, however, and we have to consider the majority’s interpretation in light of prior case law. We thus come to the third source that the appellants invoke in support of their claim that a depositor owns the surplus of an operating mutual savings bank.
*223Here we may all agree on one point, anticipated already, that longstanding case law supports the rule that “upon the winding up of the business of [a mutual savings] bank each depositor is entitled to his share of the assets and property remaining after the payment of the debts,” just as if the depositor were a corporate shareholder. Cogswell v. Bank, 59 N.H. 43, 44 (1879); cf. G.S. 152:17. This view is reflected today in RSA 386-B:l, III (Supp. 1986), which defines the “proprietary interests” of savings bank depositors, for purposes of the mutual holding company act, as
“the proportionate inchoate interests that such depositors have in the net worth of such bank, such interests maturing and being realized upon the bank’s liquidation and after the claims of all creditors (including those of depositors as creditors) have been satisfied.”
(It is this inchoate interest contingent upon solvent liquidation that would be preserved by the creation of a liquidation account in accordance with Tru 502.05, as I noted above.)
With the recognition of this contingent interest of the depositors, however, our general agreement ends. The majority rely on Cogswell and later cases for indications that mutual savings bank depositors as well as corporate stockholders enjoy equity interests in corporate assets, going beyond contingent rights to share in solvent liquidations. Unlike the majority, I submit that Cogswell and the later cases cited in the majority opinion must be read, and largely rejected, in the limiting light of In re City Savings Bank of Berlin, 113 N.H. 378, 309 A.2d 31 (1973).
City Savings has become all things to all people in the controversy before us, as each side has claimed the authority of the case, or denied its support for the opposing party. While the majority opinion takes the appellants’ view of the case’s holding, I believe that the appellants misread City Savings. Because I also believe that City Savings is directly in point and supports the trustees and the board on the facts now before us, I will have to dwell at some length on the case’s ostensibly familiar ground.
In City Savings, an institutional depositor in a mutual savings bank appealed a superior court decree permitting the consolidation of that bank with a State-chartered trust company, as authorized by RSA chapter 388. RSA 388:1 provides, inter alia, that any mutual savings bank incorporated under the laws of the State, and any trust company similarly incorporated, may apply to the superior court for a decree authorizing a “union” or consolidation of the banks and for “the dissolution of such of them as are to be liquidated in the consoli*224dation.” The Reserved Case in City Savings explains in some detail what appears from a careful reading of the court’s opinion, that the plan of merger there at issue provided for the dissolution of the savings bank. See id. at 379-80, 309 A.2d at 31; Sup. Ct. docket no. 6605, Reserved Case p. 2. Under the plan, the savings bank would first exchange its assets, including surplus, for stock in the trust company. The savings bank would then be liquidated by a distribution of its sole remaining asset, the trust company stock, pro rata to the savings depositors, under the rule recognized in Cogswell. Id.
The appealing depositor in City Savings was dissatisfied with the contemplated distribution of trust company stock upon the savings bank’s liquidation, and demanded to receive instead the cash value of its claimed ownership share in the surplus, prior to the savings bank’s exchange of assets for trust company stock and prior to the savings bank’s liquidation. The depositor raised two constitutional arguments: that approval of the proposed transfer to the trust company of savings bank surplus would effect a taking of its property without just compensation, and that approval of the proposed transfer would deny the depositor equal protection of the laws, since a dissenting shareholder of a bank organized in stock form would have been entitled to cash under RSA 388:13, paralleling the provisions of RSA 294:76 (repealed; see RSA 293-A:81 (Supp. 1986)).
Each argument rested on the asserted similarity of the respective mature equity interests of depositor and shareholder in corporate assets, a similarity that earlier cases had appeared to recognize. This court, however, flatly rejected the analogy and denied relief in language that is equally fatal to the present appellants’ assertion that a depositor “owns” the surplus of an operating mutual savings bank:
“Having no voice in the management of the affairs of the bank, a depositor today in a mutual savings bank is an ‘owner’ of the bank and its surplus more in theory than in reality; in most respects his ‘ “ownership” is only a technical fiction.’ Kreider, Who Owns the Mutuals? Proposals for Reform of Membership Rights in Mutual Insurance and Banking Companies, 41 U. Cin. L. Rev. 275, 276 (1972). As stated by the bank commissioner in his report to the superior court: ‘The depositor in the liquidation of a mutual savings bank receives a share of the surplus [which] is commonly called a “windfall.” Receiving the “windfall” is something the depositor neither earned [n]or bargained for.’ This is because the depositor in a modern mutual sav*225ings bank is not similar to the stockholder of a commercial bank or of any other commercial enterprise. See Cogswell v. Bank, [5]9 N.H. 43 (1879).”
In re City Sav. Bank, supra at 381, 309 A.2d at 32. (Emphasis in original.)
The opinion closed by quoting from the City Savings Bank’s charter, which provided that all “profits arising from said business” should be divided equitably among depositors, when and as the trustees should determine. City Savings, supra at 383, 309 A.2d at 33. (I note that this provision, unlike the charter language now before us, did not restrictively describe the recipients of obligatory distributions as persons who made the deposits that produced the profits, or on whose behalf such deposits were made.) After observing that the trustees planned to distribute profits in the form of the trust company stock that it would receive in exchange for its existing surplus and other assets, the court concluded that the distribution would be consistent with the controlling language of the charter.
Because City Savings is not the easiest opinion to read, its holding cannot be stressed too carefully. The court described the interest of a mutual savings bank’s depositor in the bank’s assets as a technical fiction in most respects. It recognized no enforceable claim or ownership interest of a mutual savings bank’s depositor in such a bank’s surplus, except the contingent right to a distribution upon liquidation, and it approvingly quoted language describing such a liquidation distribution as a “windfall.” After holding expressly that the mutual savings depositors under the City Savings charter did not have equity interests comparable to shareholders’ interests in corporate assets, the court concluded that the guarantee of equal protection was no basis for such a depositor to claim a cash distribution of a share of assets, even in circumstances that would have entitled a corporate shareholder to just such a distribution.
Two observations may sharpen the focus of the City Savings rationale. First, since a City Savings depositor lacked a sufficient mature interest in surplus to ground a claim to a cash distribution prior to a pre-liquidation merger, the depositor presumably would have lacked entitlement to a cash distribution in the absence of any merger and liquidation plan. (This is not to say, of course, that the bank’s trustees could not have made such a distribution; the case was dealing solely with a depositor’s entitlement to compel one.) Second, the court recognized only one exception to the general rule that a depositor’s proprietory interest is a mere technical fiction, and that exception was the contingent interest derived from the right to a liquidation distribution. Because an ownership interest *226that is merely a technical fiction is no interest at all, the most reasonable reading of City Savings is that the depositor has no mature, as distinct from contingent, interest in the bank’s surplus.
While the application of this analysis to the case now before us depends on the comparability of the language of the bank charters under examination, when we do compare them, the holding in City Savings cannot be distinguished away. As I noted above, the charter in City Savings was less restrictive than the Portsmouth charter before us now, in its provision for distributions of “profits” to depositors. If we are to act consistently with City Savings, then, we cannot interpret the language of the Portsmouth charter to vest any greater interest in the Portsmouth depositors than the depositors in City Savings were held to have. Since the latter had no mature interest in the surplus, as distinct from the right to a liquidation “windfall,” the Portsmouth depositors can claim nothing more, unless City Savings is to be overruled.
The majority attempt to cast City Savings in a different light, however, and they point to one statement in the opinion that appears at first blush tó support their own view. After disposing of the constitutional issues, the court in City Savings considered a further argument much like the one before us, that the plan was inequitable to depositors. The court responded by quoting from Manchester Savings Bank v. N.H. Association of Savings Banks, 110 N.H. 341, 347, 266 A.2d 838, 842 (1970), where it had observed that the depositors’ interest in the “surplus of the savings bank is preserved by converting it to an interest in the equity of the trust company which will own the assets” of the preexisting savings bank. This quotation is apparently what the majority have in mind when they state that the City Savings opinion “assumed” that the depositors “owned the bank’s surplus.”
A careful examination of City Savings and the record in Manchester Savings, however, reveals that the court made no such assumption in either case. Like City Savings, Manchester Savings was an appeal challenging the legality of a plan of merger under RSA chapter 388, under which a mutual savings bank would be liquidated after transferring its surplus to a trust company. (For details of the plan, see Manchester Savings Bank v. N.H. Association of Savings Banks, Sup. Ct. docket no. 6049, Reserved Case pp. 3-5, 18.) Prior to its liquidation the savings bank would make a series of transfers, in return for which it would ultimately be left with certain voting trust certificates as its sole assets. The plan called for the distribution of these certificates, see Manchester Savings, supra at 343, 266 A.2d at 840, or scrip representing fractional interests in *227them, Manchester Savings, supra at 347, 266 A.2d at 843, to the depositors upon the bank’s liquidation. The only interest of a depositor in surplus that was thereby “preserved” was thus an interest contingent upon the bank’s liquidation. No issue was raised about a depositor’s right to receive such a liquidation distribution, and neither the opinion nor the record indicates that a depositor might have any right to a distribution from surplus except upon liquidation.
The same must be said of City Savings. The attempt of the majority to claim some support from the case rests on a misunderstanding, focused in the majority opinion’s statement that City Savings “indicates that the depositors did have a right to distribution of the surplus, but held that this right was adequately protected by the ratable stock transfer.” The majority overlook the fact that the depositors had a “right to distribution of the surplus” only because the merger in City Savings called for the liquidation of the savings bank, an event that would not occur under the conversion-acquisition plan for Portsmouth. See Tru 505.07. They likewise fail to see that City Savings held that the proposed “stock transfer” would protect a depositor’s right, solely because the trust company stock to be transferred would be the savings bank’s sole asset at the time of liquidation.
In summary, then, neither City Savings nor Manchester Savings recognized any claim of a depositor to surplus except upon the savings bank’s liquidation, and the recognition of the right to a liquidation distribution is no authority for the majority’s holding that a depositor owns the surplus before liquidation. Conversely, there is no basis to distinguish away the applicability of the City Sawings holding, that prior to liquidation a mutual savings depositor has no property interest in the bank’s surplus rising above a technical fiction, which is to say no mature interest at all. As a consequence, the majority cannot extricate themselves from the result of overruling City Savings by what they do today.
In overruling that prior law, they err, however, for three independent but complementary reasons. There is, first, the claim of stare decisis itself, “a principle of policy,” Monroe v. Pape, 365 U.S. 167, 222 (1961) (Frankfurter, J., dissenting), overruled, or, other grounds, Monnell v. New York City Department of Social Services, 436 U.S. 658, 695 (1978), which “is essential if case-by-case judicial decision-making is to be reconciled with the principle of the rule of law, for when governing legal standards are open to revision in every case, deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results.” Thornburgh v. American *228College of Obstetricians, 106 S. Ct. 2169, 2192 (1986) (White, J., dissenting). Although it is a familiar observation that the strength of precedent’s claim will vary with its context, see, e.g., Monnell v. New York City Department of Social Services, supra at 695; and compare Monroe v. Pape, supra at 192 (Harlan, J., concurring in part) with Oregon v. Mitchell, 400 U.S. 112, 217-18 (1970) (Harlan, J., dissenting in part), the claim is certainly powerful in a case like the one before us, which arises in “an area of commercial law in which, presumably, individuals may have arranged their affairs in reliance upon the expected stability of decision.” Monroe v. Pape, supra at 221-22 (Frankfurter, J., dissenting). Only the weightiest of reasons could justify a refusal to honor the expectations of the institutions and the board, whose officers and 'members should be entitled to rely on the 1973 decision of this court in City Savings.
Second, even if we did reexamine City Savings, there would be enough reason to adhere to it. The majority in effect criticize City Savings for resting on a facile view that property rights under a charter can be extinguished by the vicissitudes of commercial evolution, but that is a harsh view of the case. The charter quoted in City Savings, like Portsmouth’s charter, did not affirmatively address the formation or disposition of a surplus that the charter’s draftsmen most probably never even thought possible. The court admittedly did not attempt to derive a principle for decision from such intentions as the charter did reveal, but having assumed that the charter left a depositor’s pre-liquidation interest in surplus an open question, the court reasonably emphasized that a depositor who had not bargained for any equity in surplus, whose deposit had not earned the equivalent of any pro rata surplus interest, and who had assumed no risk of losing his deposit, had no equitable claim to anything more than the deposit and the fruits of its investment.
The court in City Savings was, if anything', laconic in explaining why a depositor’s relation to surplus failed to measure up even to a loose conception of beneficial ownership. After recalling the reasons I marshalled for rejecting the present appellants’ statement that all rights of surplus ownership are vested in the depositors, it is no surprise that the court in City Savings described even a depositor’s conceded right to a liquidation distribution as a “windfall.” In these unpromising circumstances, to have inferred a mature pre-liquidation property interest would have been weaving with whole cloth, and Chief Justice Kenison’s reasoning in City Savings does not cry out to be overruled.
City Savings has, moreover, a further claim to support, which has yet to be developed in any detail, but which should not be foreclosed. *229In its holding that the depositors have no mature interest in an operating mutual savings bank’s surplus, City Savings invited the question of what obligations the trustees of such a bank do have to accumulate, invest and dispose of surplus during the bank’s operating life. I will not presume to answer that complex question here, but it is enough to realize that under City Savings the door was open to consider the obligation of such a bank’s trustees to the broader community that could be helped or hurt by what a bank did with its surplus.
To give just one example of what I have in mind, under City Savings both the trustees and the board had the clear opportunity to consider a policy formerly espoused by the Federal Home Loan Bank Board in the interest of institutional financial stability.
“The board has determined that a method of conversion which provides a so-called ‘windfall’ distribution to the account holders of a converting mutual insured institution would create strong incentives for significant shifts of savings funds among insured institutions and other financial institutions and that such shifts of savings funds would unacceptably threaten the financial stability of such institutions. The Board has also determined that a method of conversion which provides a so-called ‘windfall’ distribution would tend to force individual mutual insured institutions to convert to the stock form irrespective of whether such institutions or the communities they serve would be benefitted thereby. The Board therefore finds that no method of conversion can be considered equitable unless such ‘windfall’ distribution is virtually eliminated.”
44 Fed. Reg. 18,883 (March 29, 1979); withdrawn 48 Fed. Reg. 15,594 (April 12, 1985).
It is significant that the majority decision will probably mandate such windfalls and force conversions, but it is more significant that labelling the depositors as owners of surplus will tend to discourage attention to the undoubted public interest in the way a mutual savings bank’s surplus is treated. Any consideration of public policy in determining the appropriate use of surplus, be it by a mutual savings bank’s trustees, by the board, by the legislature or by this court, will be exposed to the objection that “ownership” must not be infringed. While the objection would be proper if the ascription of ownership were justifiable, such is not the case. This regrettable consequence of repudiating City Savings reflects the assumption with which the majority began, that one person or class must “own” *230the surplus, as distinguished from the assumption that the beneficial interest in the surplus may be subject to a congeries of legitimate claims over time. In any case, the majority opinion’s impediment to considerations of the broader public interest should militate against overruling City Savings without a compelling justification, which is entirely lacking here.
The third reason to adhere to City Savings is reflexive, comprising the uncertainties that will follow from overruling it. Although legal certainty may always be relative, it is noteworthy that the majority expressly disclaim to predict the consequences of what they hold, beyond vacating the board’s approval of the proposed conversion-acquisition: “We ... do not specify what course the Bank’s trustees may, or even must, take in the event of a stand-alone conversion . . . .” Nor, of course, do the majority specify what the future may hold for Portsmouth’s surplus, or for the surpluses of other mutual savings banks, in the absence of the banks’ conversions to stock form.
There is in this reticence a promise of more litigation to come. The majority’s quoted disclaimer is itself pregnant with the suggestion that the traditional practice of granting a depositor the preferential opportunity to purchase a mutual savings bank’s stock upon its conversion rñay be an insufficient recognition of the ownership status that today’s decision appears to create. It is therefore now an open question whether Portsmouth’s charter can be read to empower the trustees to require a depositor to contribute new capital through stock subscription, in order to preserve the depositor’s vested ownership of the surplus of the operating bank.
An equally inviting subject of litigation is the unqualified simplicity of the majority conclusion that Portsmouth’s charter includes the entire surplus in the sweep of “income and profits.” As I noted before, the majority do not merely hold that “income and profits” include the current return on invested surplus or some portion of surplus representing recently undistributed income; they hold that “income and profits” include the entire accumulated surplus of seventeen million dollars. Whatever this may ultimately be taken to mean in practical terms, it means that a depositor’s demand for distribution need not be limited to a reasonable portion of current net income. Cf. RSA 386-B:8,1 (Supp. 1986). And despite the majority’s suggestion that their opinion may apply only to Portsmouth and two other pre-1842 mutual savings banks, they also appear to hold that RSA 386:10,1, leads to the same result for all mutual savings banks, now that the repeal of federal regulation has rendered the State statute permitting dividends “fully enforceable.” I therefore assume *231that, after the release of today’s opinion, mutual depositors will have a colorable basis to demand distributions from surpluses accumulated over long periods of time, and to sue for them in the superior court to the extent that the trustees of the State’s mutual savings banks do not comply. I will not try to predict the results of such suits, which I cannot do; it is enough to note the likelihood that demands and litigation will follow in the wake of the majority’s holding, and that they will not necessarily be confined to the three banks chartered before 1842. This should be cause for some foreboding, despite the majority’s express assumption that the judiciary will be up to the task of deciding how much of a bank’s net worth it would be reasonable to distribute on demand. I do not share such optimism about the judiciary’s commercial wisdom.
A final uncertainty has to be faced. If a future case does present the opportunity to test the extent and the consequences of the “ownership” that the majority have recognized today, that case may also present the court with the further issue of whether to follow today’s majority at all. The majority consists of two members of this court together with Justice Nadeau of the Superior Court sitting by assignment under RSA 490:3, II, in place of Justice Thayer, who did not sit. Although this court has not previously considered the precedential force of an opinion that would lack majority status without the concurrence of an assigned justice, I am forced to raise the issue here, despite my respect for Justice Nadeau and for the strength of his convictions in this case. Again, I will not presume to say here how this issue should be resolved, but we must recognize that the aftermath of this case may force us to resolve it. The mere fact that the majority holding may be subject to reexamination on this basis reveals an institutional weakness inherent in the authority to fill vacancies by assignment under RSA 490:3, II, and should persuade the majority to follow City Savings until and unless that case is overruled by a majority of sitting members of this court.
As it is, the majority have not faced the facts or the effects of overruling our prior law. They fail to establish persuasively that Portsmouth’s depositors are vested with a mature interest in the Bank’s surplus, for so long as the Bank continues in operation, and they likewise fail to demonstrate that the depositors are entitled to anything more than the plan provided for them. Because the majority have furnished no basis to reverse the board for illegality or unreasonableness under RSA 541:13,1 respectfully dissent.