In re Estate of Etmund, 900 N.W.2d 536

Background

Decedent Cora H. Etmund died leaving a will appointing Cheryl A. Brown as personal representative and directing Brown to give the current farm tenant, Norris Talcott, the first opportunity to buy the farm “under commercially reasonable terms and conditions as he and [my] personal representative may agree.”
The property was agricultural and zoned agricultural at death; Brown hired a certified appraiser who valued it at $785,859 (agricultural use) and negotiated a sale to Talcott for $900,000.
Devisees (petitioners) contested the sale, commissioning their own appraiser who valued the property at $1,457,000 based on a highest-and-best-use residential development theory, and petitioned to remove Brown under Neb. Rev. Stat. § 30-2454.
The county court preliminarily restrained closing, allowed investigation, received competing appraisal testimony, found Brown’s appraiser more credible, and denied removal and the petition to appoint successor co-personal representatives.
On appeal, the Nebraska Supreme Court reviewed whether Brown’s sale terms were “commercially reasonable” under the will and whether removal was warranted for mismanagement.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether “commercially reasonable terms” in the will requires selling at highest-and-best-use (residential development) value	Petitioners: the phrase requires valuing land at its highest and best use (residential development) so sale at $900,000 was too low	Brown: phrase must be read with the will; it contemplates negotiation with current farm tenant and permits agricultural-sale valuation	Court: phrase is unambiguous in context; does not compel highest-and-best-use valuation and supports sale to tenant on commercially reasonable terms negotiated with tenant
Whether Brown mismanaged the estate by hiring an appraiser who did not value development potential	Petitioners: Brown’s appraiser admitted he was not qualified to appraise development land, so appraisal was inadequate and Brown mismanaged	Brown: appraiser was a qualified, disinterested general certified appraiser with experience in agricultural valuations; Brown may rely on advisor recommendations	Court: appraiser was qualified for agricultural valuation; Brown acted within her discretion and statutory authority to rely on advisors
Whether competing appraisals required removal of personal representative	Petitioners: a large valuation disparity shows Brown jeopardized estate and warrants removal	Brown: county court weighed credibility and evidence; removal not justified absent cause	Court: factual findings (credibility, value) were not clearly erroneous; no cause for removal under § 30-2454
Standard of review applicable to probate will interpretation and factual findings	Petitioners: N/A (argue for de novo or reversal)	Brown: county court’s factual credibility determinations entitled to deference; legal interpretation reviewed de novo	Court: legal questions (will interpretation) reviewed de novo; factual findings reviewed for clear error and upheld

Key Cases Cited

In re Estate of Nemetz, 273 Neb. 918 (discussing valuation and highest-and-best-use in probate sales)
In re Estate of Shell, 290 Neb. 791 (will interpretation principles in probate matters)
In re Estate of Webb, 20 Neb. App. 12 (removal/valuation issues in estate administration)
Chadron Energy Corp. v. First Nat. Bank, 236 Neb. 173 (commercial reasonableness under UCC is a fact question)
In re Estate of Ritter, 227 Neb. 641 (cardinal rule: give effect to testator’s intent)
Reeves v. Associates Financial Servs. Co., Inc., 197 Neb. 107 (authority cited by petitioners for valuation/removal principles)
Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462 (appellate review deference to trial court credibility findings)