In re Estate of Etmund, 297 Neb. 455

Background

Decedent Cora H. Etmund’s will gave personal representative Cheryl A. Brown broad discretion to sell estate realty and required Brown to give current farm tenant Norris Talcott the first opportunity to purchase the property “under commercially reasonable terms and conditions as he and [the personal representative] may agree.”
At death the property was agricultural land zoned agricultural and farmed by Talcott. Brown retained a certified appraiser who valued the property for agricultural use at $785,859. Brown negotiated and contracted to sell to Talcott for $900,000.
Devisees (petitioners) hired a separate appraiser who valued the property at $1,457,000 based on a “highest and best use” as future residential development with interim agricultural use; they moved to restrain the sale and then to remove Brown as personal representative under Neb. Rev. Stat. § 30-2454.
The county court temporarily restrained closing, allowed petitioners time to investigate, received both appraisals, heard credibility evidence, found Brown’s appraiser more credible, denied removal, and approved Brown’s exercise of discretion.
The Nebraska Supreme Court reviewed whether the will’s phrase “commercially reasonable” required pricing at highest-and-best-use (residential development) value and whether Brown abused discretion or hired an unqualified appraiser; it affirmed the county court.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether “commercially reasonable terms” in the will required sale at highest-and-best-use (development) value	Petitioners: phrase requires valuation at highest and best use (residential development) so $900,000 was unreasonably low	Brown: phrase governs negotiations with tenant and allows sale on commercially reasonable terms based on agricultural use; will grants broad discretion to PR	Court: phrase is not ambiguous; in context it contemplates negotiation with tenant and does not mandate highest-and-best-use valuation; affirmed county court
Whether Brown should be removed for mismanagement under § 30-2454 for selling below fair market value	Petitioners: sale price far below their appraiser’s development-based value shows mismanagement and justifies removal	Brown: acted on qualified appraiser’s valuation, consulted counsel, and exercised permissible discretion	Court: no cause for removal; Brown acted reasonably and relied on a qualified, disinterested appraiser
Whether Brown’s appraiser was unqualified to value the property because he disclaimed competence to appraise development value	Petitioners: appraiser’s limitation undermines his appraisal and Brown’s reliance on it	Brown: appraiser was licensed, experienced in agricultural appraisals, and entitled to rely on his professional judgment for agricultural valuation	Court: appraiser was qualified for agricultural valuation; PR may rely on such an appraiser without independent investigation
Standard of review for commercial reasonableness and factual findings	Petitioners: ask appellate court to overturn county court valuation/credibility findings	Brown: bench trial credibility and factual findings should be upheld unless clearly erroneous	Court: legal interpretation reviewed de novo; factual determinations (including credibility and valuation choice) are not clearly erroneous and are affirmed

Key Cases Cited

In re Estate of Nemetz, 273 Neb. 918 (2007) (discusses valuation approaches and highest‑and‑best‑use in probate context)
In re Estate of Shell, 290 Neb. 791 (2015) (principles for interpreting wills and testamentary intent)
In re Estate of Webb, 20 Neb. App. 12 (2012) (removal of personal representative and appraisal disputes in probate)
Chadron Energy Corp. v. First Nat. Bank, 236 Neb. 173 (1990) (commercial reasonableness under the UCC is a factual question)
Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462 (2008) (appellate review of bench-trial credibility and factual findings)
In re Estate of Ritter, 227 Neb. 641 (1988) (cardinal rule that testator’s intent controls will construction)
Reeves v. Associates Financial Services Co., Inc., 197 Neb. 107 (1976) (authority cited regarding sales below appraised value in different factual contexts)