In re Estate of Etmund, 297 Neb. 455

Background

Decedent Cora H. Etmund died owning agricultural land farmed by tenant Norris Talcott; her will appointed Cheryl A. Brown as personal representative and directed Brown to give Talcott the first opportunity to buy the property “under commercially reasonable terms and conditions as he and [the personal representative] may agree.”
Brown hired a certified appraiser who valued the property for agricultural use at $785,859 and negotiated a sale to Talcott for $900,000; Talcott accepted.
Devisees (petitioners) hired their own appraiser who valued the property at $1,457,000 based on its highest-and-best use as residential development with interim agricultural use, and petitioners sought to restrain closing and to remove Brown as personal representative under Neb. Rev. Stat. § 30-2454.
The county court temporarily restrained closing, allowed petitioners time for investigation, then denied removal after finding Brown’s appraiser more credible and that the sale terms were commercially reasonable in light of the will and evidence.
The Nebraska Supreme Court reviewed whether the will’s phrase "commercially reasonable terms" required valuation at highest-and-best-use development value and whether Brown’s choice of appraiser rendered her unfit; it affirmed the county court.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether “commercially reasonable terms” in the will requires selling at highest-and-best-use (development) value	Phrase mandates valuation at highest-and-best-use (residential development) and Brown’s sale at $900,000 was below fair value	Phrase governs negotiations with the tenant; read in context it allows sale based on agricultural valuation agreed with tenant	Court: Phrase is not ambiguous; in context it contemplates negotiations with current tenant and does not compel highest-and-best-use valuation; sale was commercially reasonable
Whether Brown should be removed for hiring an appraiser who did not value development potential	Brown’s appraiser admitted he was not qualified to appraise development land, so his appraisal was insufficient and Brown mismanaged estate	Brown’s appraiser was a licensed, experienced general certified appraiser who reasonably valued the property as agricultural; Brown acted within broad discretion and relied on qualified, disinterested advice	Court: Brown acted reasonably under the will and probate statutes; appraiser was qualified and disinterested; no cause for removal
Whether the county court’s factual finding on value and credibility was clearly erroneous	Petitioners: county court erred in crediting Brown’s appraiser over theirs	Brown: trial court is sole judge of witness credibility; its finding should stand unless clearly erroneous	Court: affirmed county court’s credibility and factual findings as supported by competent evidence
Whether temporary restraint and investigatory process was properly handled	Petitioners sought full relief including successor co-personal representative appointment	Brown: county court’s process (temporary restraint, investigation) was proper and allowed full evaluation	Court: affirmed county court’s procedures and ultimate denial of removal

Key Cases Cited

In re Estate of Nemetz, 273 Neb. 918 (applicable principle on valuation/higher-and-best-use)
In re Estate of Shell, 290 Neb. 791 (will interpretation and probate principles)
In re Estate of Webb, 20 Neb. App. 12 (removal of personal representative context)
Chadron Energy Corp. v. First Nat. Bank, 236 Neb. 173 (commercial reasonableness under UCC is fact question)
In re Estate of Ritter, 227 Neb. 641 (cardinal rule to effect testator’s intent)
Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462 (bench trial credibility review)
Reeves v. Associates Financial Servs. Co., Inc., 197 Neb. 107 (authority cited by petitioners for comparison)