In re Estate of Etmund, 297 Neb. 455

Background

Decedent Cora H. Etmund died leaving a will appointing Cheryl A. Brown as personal representative and directing that current farm tenant Norris Talcott be given the first opportunity to buy the farm “under commercially reasonable terms and conditions as he and [personal representative] may agree.”
Brown hired a certified appraiser who valued the property at $785,859 based on agricultural use; Brown negotiated and contracted to sell the property to Talcott for $900,000.
Devisees (Jean Holubar, Paul Etmund, Dale Etmund, Sr., and Diane Geistlinger) procured a competing appraisal valuing the property at $1,457,000 based on highest-and-best-use as 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, gave petitioners time to investigate, then held a hearing, found Brown’s appraiser more credible, denied removal, and allowed Brown to proceed; petitioners appealed.
The Supreme Court reviewed whether Brown breached the will’s instruction to sell on “commercially reasonable terms” and whether she was removable for mismanagement or failing to perform duties.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether “commercially reasonable terms” required valuing land at its highest-and-best-use (residential development)	Will requires sale at commercially reasonable price = highest-and-best-use value; $900,000 is too low	Phrase read in context allows negotiation with tenant and deference to appraiser valuing current agricultural use	Court: Phrase not ambiguous in context; it contemplates negotiating with tenant and does not compel highest-and-best-use valuation; no error finding Brown’s sale commercially reasonable
Whether Brown should be removed for mismanagement or failing to perform duties by accepting $900,000 sale	Hiring appraiser who ignored development value and accepting lower price shows mismanagement; removal is warranted	Brown acted within broad testamentary discretion, relied on a qualified, disinterested appraiser and counsel, and followed statutory authority to act on their recommendations	Court: No cause for removal under § 30-2454; Brown’s conduct was within discretion and supported by competent evidence
Whether Brown’s appraiser was qualified and his testimony adequate	Appraiser admitted not qualified to appraise development, so appraisal was inadequate	Appraiser was a licensed general certified appraiser experienced in farms; he considered development and concluded it was not financially feasible	Court: Appraiser was qualified for agricultural valuation; Brown entitled to rely on his appraisal; county court credibility finding not clearly erroneous
Standard of review / whether county court misweighed competing appraisals	County court erred in crediting agricultural appraisal over development appraisal	Trial court is sole judge of witness credibility; appellate court defers unless clear error	Court: County court’s factual findings — credibility and value — were supported by competent evidence and not clearly erroneous

Key Cases Cited

In re Estate of Nemetz, 273 Neb. 918 (2007) (discusses valuation and highest-and-best-use in probate sale context)
In re Estate of Shell, 290 Neb. 791 (2015) (interpretation of testamentary language and executor duties)
In re Estate of Webb, 20 Neb. App. 12 (2012) (executor removal and sale price disputes in probate)
Chadron Energy Corp. v. First Nat. Bank, 236 Neb. 173 (1990) (commercial reasonableness under UCC is a factual question)
Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462 (2008) (appellate review deferential to trial court credibility findings)
Reeves v. Associates Financial Services Co., Inc., 197 Neb. 107 (1976) (precedent on contested valuations and remedies)
In re Estate of Ritter, 227 Neb. 641 (1988) (rules for ascertaining testator intent and will construction)