(dissenting):
While I don’t completely agree with all the language and all of the conclusions of law contained in Justice Maddox’ -dissenting opinion, I am in general agreement with it.
In my opinion, the Congress of the United States anticipated the problems which arose in this case. Congress anticipated that conflicts of interest could easily arise between a bank trustee and an individual co-trustee and that charges and counter-charges of disloyalty to the trust and its beneficiaries could be present in a merger *57reorganization of a national bank where the trust held stock in that bank. Therefore, Congress provided procedures to meet the anticipated problems, including the valuation of bank stock held by a trust of which the merging bank was one of the trustees.
After reviewing the majority opinion I have concluded that the majority finds that the only real breach of BTNB’s trust duties involved in the merger reorganization was that BTNB breached its fiduciary relationship in failing to submit valuation data to the Comptroller of the Currency. Since an appraisal was made by the comptroller and public auctions of the stock were held, strict compliance with the requirements concerning the appointment of the three appraisers and with other preliminary steps was made moot. My colleagues of the majority fail to realize that Congress placed a duty on the comptroller to make the appraisal of the value of the stock. The choice of the comptroller to make the appraisal was not by chance. Who else other than the comptroller would have access to all of the records of the bank and the authority to demand and acquire information which might affect valuations ?
In my judgment, Congress intended that the federal law would preempt the state law as to the details and the procedure of a merger of a national bank, including the procedure of determining the value of the stock of a dissenting trust of which the merging bank was one of the trustees. If not, why did Congress specify such a detailed and protective procedure? See Rogers v. First National Bank of St. George, 297 F.Supp. 641 (D.S.C.), aff’d 410 F.2d 579 (4th Cir. 1969).
The majority cites one other breach of the bank-trustee’s responsibility — the failure to buy stock in a corporation when the individual co-trustee recommends the purchase.
The bank in this instance gave many valid reasons why stock in the Birmingham Realty Company should not be purchased. The trial court heard the evidence ore ten-us. I do not find from the evidence that the decision of the trial court was plainly erroneous or manifestly unjust. Kubiszyn v. Bradley, 292 Ala. 570, 298 So.2d 9 (1974). In Dougherty v. Gulf Shores Motel, 292 Ala. 252, 254, 292 So.2d 454, 456 (1974), this court said:
“Where the evidence is heard orally before the trial court, the finding of the court has the effect of a jury’s verdict and will not be disturbed on appeal unless plainly erroneous. And we must affirm the trial court’s decree if fairly supported by credible evidence under any reasonable aspect, regardless of what might be our view of the evidence. Lott v. Keith, 286 Ala. 431, 241 So.2d 104; Norton v. Norton, 280 Ala. 307, 193 So.2d 750.”
It is difficult to understand how the majority of this court can reach the issue of a breach of trust duties by John C. Henley, III, the individual co-trustee. The trial court didn’t mention any such breach in its decree. There is no urging by cross appeal or otherwise from any party to this cause that this court should make such a finding.
I am in agreement with Justice Maddox in his treatment of the Attorney General issue.
I would affirm the decree of the trial court.