In re Estate of Etmund
297 Neb. 455
| Neb. | 2017Background
- 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 buy the real estate “under commercially reasonable terms and conditions as he and [my] personal representative may agree,” and if not, to sell otherwise.
- The property was agricultural land, zoned agricultural, farmed by Talcott for many years; Brown hired an appraiser who valued it for agricultural use at $785,859.
- Brown negotiated a sale to Talcott for $900,000 and executed a purchase agreement in November 2015.
- Devisees (petitioners) contested the sale, obtained a temporary restraining order, and hired their own appraiser who valued the land at $1,457,000 based on a highest-and-best-use (residential development with interim agriculture) analysis; petitioners sought Brown’s removal under Neb. Rev. Stat. § 30-2454.
- The county court denied removal after crediting Brown’s appraiser; the court found “commercially reasonable terms” as used in the will referred to negotiations between the personal representative and the tenant (Talcott) and upheld the $900,000 sale as commercially reasonable.
- The Nebraska Supreme Court affirmed, holding the will was not ambiguous on this point, Brown acted within broad discretionary authority, her appraiser was qualified for agricultural valuation, and the county court’s factual findings were not clearly erroneous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the phrase “commercially reasonable terms and conditions” required valuing the land at its highest and best use (residential development) | Petitioners: the will requires a commercially reasonable price, which for land means highest-and-best-use valuation (residential development) | Brown: the will’s language, context, and grant of discretion show commercially reasonable terms refers to negotiated terms with the tenant and allows agricultural valuation | Court: Phrase is not ambiguous; in context it contemplates negotiation with the tenant and does not mandate highest-and-best-use valuation; no error in finding sale commercially reasonable |
| Whether Brown should be removed for hiring an appraiser who admitted he was not qualified to appraise development property | Petitioners: Brown’s appraiser was unqualified (for development valuation), so Brown mismanaged estate and should be removed | Brown: appraiser was a licensed, experienced general certified appraiser who properly valued the property for agricultural use; Brown acted reasonably relying on his advice | Court: Brown acted within discretion, the appraiser was qualified and disinterested for agricultural appraisal, and removal was not warranted |
| Whether the county court erred in crediting Brown’s appraiser over petitioners’ appraiser | Petitioners: their appraisal showing much higher value demonstrates the sale unreasonably jeopardized estate | Brown: county court is the factfinder and may credit Brown’s appraiser; sale price was supported by competent evidence | Court: Appellate court will not reweigh credibility; county court’s finding favoring Brown’s appraiser was supported by competent evidence and not clearly erroneous |
| Standard for removal under § 30-2454 | Petitioners: removal appropriate when sale is significantly below fair market value and harms estate | Brown: removal requires showing mismanagement or that removal is in estate’s best interests; here neither shown | Court: § 30-2454 requires cause (mismanagement or best interests); petitioners did not meet burden, so denial of removal upheld |
Key Cases Cited
- In re Estate of Nemetz, 273 Neb. 918 (discusses valuation and highest-and-best-use in probate contexts)
- In re Estate of Shell, 290 Neb. 791 (treats interpretation of will language as a question of law)
- In re Estate of Webb, 20 Neb. App. 12 (probate removal and sales below appraised value context)
- Chadron Energy Corp. v. First Nat. Bank, 236 Neb. 173 (commercial reasonableness is a question of fact)
- 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 (on context of valuation disputes and legal standards)