In re Estate of Etmund, 297 Neb. 455

Background

Decedent Cora H. Etmund’s will appointed Cheryl A. Brown as personal representative and directed Brown to give current farm tenant Norris Talcott the first opportunity to buy the real estate “under commercially reasonable terms and conditions as he and [the personal representative] may agree.”
The property was agricultural and zoned agricultural; Brown hired a certified appraiser who valued it at $785,859 (agricultural use). Brown negotiated a sale to Talcott for $900,000 and entered a purchase agreement.
Devisees (petitioners) challenged the sale as below fair market value, commissioned an appraisal valuing the land at $1,457,000 based on highest-and-best-use residential development with interim agricultural use, and petitioned to remove Brown under Neb. Rev. Stat. § 30-2454.
The county court temporarily restrained Brown from closing, allowed investigation, received both appraisals and live testimony, and found Brown’s appraiser more credible; it denied removal and other relief sought by petitioners.
On appeal, the Nebraska Supreme Court reviewed statutory duties, will construction, and factual findings and affirmed the county court: “commercially reasonable terms” was not ambiguous to require highest-and-best-use valuation, and Brown acted within discretion in relying on a qualified agricultural appraisal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Brown must value the land at its highest-and-best-use (residential development) when offering tenant the first opportunity	Petitioners: “commercially reasonable” requires valuation at highest and best use (residential development), so sale to Talcott at $900,000 was below market and mismanagement	Brown: Will gives broad discretion to offer tenant the first opportunity and sell on commercially reasonable terms with appraisals; property was agricultural and Brown relied on qualified appraiser	Court: “Commercially reasonable” as used in will is not ambiguous to require highest-and-best-use; affirm county court that sale was commercially reasonable
Whether Brown’s appraiser was qualified to value the property and whether reliance on that appraisal justifies denial of removal	Petitioners: Brown’s appraiser admitted he was not qualified to appraise development property; thus appraisal was inadequate and Brown mismanaged estate	Brown: Appraiser was a general certified appraiser experienced in agricultural land, disinterested, and Brown may act on advisers’ recommendations under probate statutes	Court: Appraiser was qualified for agricultural valuation, Brown properly relied on him; no cause for removal
Whether factual finding that $900,000 was commercially reasonable is clearly erroneous	Petitioners: Competing appraisal shows much higher value — county court’s credibility choice was wrong	Brown: County court weighed evidence and credibility; findings entitled to deference	Court: County court’s credibility and value determination not clearly erroneous; appellate review affirms
Whether removal of personal representative was warranted under § 30-2454(b)	Petitioners: Removal in best interests because of alleged mismanagement (sale below fair market)	Brown: No mismanagement; acted within authority and statutory protections	Court: No cause for removal; affirmed

Key Cases Cited

In re Estate of Nemetz, 273 Neb. 918 (discussing valuation under highest-and-best-use in probate context)
In re Estate of Shell, 290 Neb. 791 (will interpretation and personal representative duties)
In re Estate of Webb, 20 Neb. App. 12 (prior probate sale/value dispute cited by petitioners)
Chadron Energy Corp. v. First Nat. Bank, 236 Neb. 173 (issue of commercial reasonableness is fact question)
Reeves v. Associates Financial Services Co., Inc., 197 Neb. 107 (authority cited by petitioners on valuation disputes)
In re Estate of Ritter, 227 Neb. 641 (cardinal rule to effectuate testator intent)
Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462 (deference to trial court on witness credibility)