In re Estate of Etmund, 297 Neb. 455

Background

Decedent Cora H. Etmund died leaving a will that (1) appointed Cheryl A. Brown as personal representative and (2) directed Brown to give the current farm tenant, Norris Talcott, the first opportunity to purchase the real property “under commercially reasonable terms and conditions as he and [my] personal representative may agree.”
Property was zoned and used agriculturally at death. Brown hired a certified appraiser who valued it at $785,859 (agricultural use) and negotiated a sale to Talcott for $900,000, which Talcott accepted.
Devisees (petitioners) obtained a temporary restraining order under Neb. Rev. Stat. § 30-2450, hired their own appraiser who valued the land at $1,457,000 (highest-and-best-use residential development with interim agriculture), and filed to remove Brown as personal representative under § 30-2454.
The county court restrained closing briefly, took evidence (two competing appraisals and testimony on feasibility and appraiser qualifications), found Brown’s appraiser more credible, denied removal, and approved Brown’s conduct.
Petitioners appealed the denial of removal; the Nebraska Supreme Court affirmed, holding the will’s phrase “commercially reasonable terms” was not ambiguous and Brown acted within her discretion.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Brown failed to sell “under commercially reasonable terms” and thus should be removed	Will requires valuation at highest and best use (residential development); $900,000 far below petitioners’ $1,457,000 appraisal, so Brown mismanaged estate	Will gives Brown discretion to negotiate commercially reasonable terms with the tenant; Brown relied on a qualified agricultural appraisal and negotiated in good faith	Court held “commercially reasonable” read in context is not ambiguous and does not demand highest-and-best-use development value; no cause to remove Brown
Whether Brown’s appraiser was unqualified to support the sale decision	Appraiser admitted he was not qualified to appraise development value, so his limited approach made Brown’s appraisal unreliable	Appraiser was a licensed general certified appraiser with county farm experience and properly appraised agricultural value; Brown reasonably relied on him	Court held appraiser was qualified and disinterested for agricultural valuation; Brown entitled to rely on his recommendation
Whether the factual determination of commercial reasonableness was clearly erroneous	Petitioners: county court should have credited highest-and-best-use appraisal and removed Brown	Brown: county court weighed credibility of competing experts and reasonably accepted Brown’s appraisal	Court reviewed for clear error and found no clear error; county court’s credibility findings upheld
Whether personal representative abused broad will-granted discretion	Petitioners: selling below highest potential value is abuse	Brown: will confers broad discretion to sell and to employ advisers and appraisers; acted reasonably and within statutory authority	Court held Brown acted within will and statutes (§§ 30-2464, 30-2468, 30-2476); no abuse of discretion

Key Cases Cited

In re Estate of Nemetz, 273 Neb. 918, 735 N.W.2d 363 (discusses highest-and-best-use valuation in probate context)
In re Estate of Shell, 290 Neb. 791, 862 N.W.2d 276 (interpretation of testamentary language and personal representative duties)
In re Estate of Webb, 20 Neb. App. 12, 817 N.W.2d 304 (removal of personal representative where sale below appraised value implicated)
Chadron Energy Corp. v. First Nat. Bank, 236 Neb. 173, 459 N.W.2d 718 (commercial reasonableness under UCC is fact question)
Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462, 748 N.W.2d 1 (bench trial credibility and appellate review standards)
In re Estate of Ritter, 227 Neb. 641, 419 N.W.2d 521 (cardinal rule to effectuate testator intent)
Reeves v. Associates Financial Services Co., Inc., 197 Neb. 107, 247 N.W.2d 434 (precedent cited by petitioners on sale-value disputes)