In re Estate of Etmund, 297 Neb. 455

Decedent Cora H. Etmund’s will appointed Cheryl A. Brown as personal representative and directed Brown to give the current farm tenant, Norris Talcott, the first opportunity to purchase the real estate “under commercially reasonable terms and conditions as he and [the personal representative] may agree.”
Brown hired a certified appraiser who valued the property at $785,859 based on agricultural use and then entered a purchase agreement with Talcott for $900,000.
Devisees (petitioners: Holubar, P. Etmund, D. Etmund Sr., and Geistlinger) procured a competing appraisal valuing the land at $1,457,000 based on highest-and-best-use as residential development and petitioned to restrain closing and to remove Brown under Neb. Rev. Stat. § 30-2454.
The county court temporarily restrained closing, allowed petitioners time to investigate, then held a hearing, found Brown’s appraiser more credible, and denied removal and petitioners’ request for successor personal representatives.
The Nebraska Supreme Court reviewed whether Brown failed to sell under “commercially reasonable” terms and whether her appraiser was qualified; it affirmed the county court’s denial of removal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Brown should be removed for selling below fair value	Brown sold for $900,000, far below petitioners’ $1,457,000 appraisal, so removal is in estate’s best interests	Brown followed will’s direction, relied on a certified appraiser, and negotiated with tenant per will	No removal; sale was commercially reasonable and county court’s credibility finding stands
Meaning of “commercially reasonable terms and conditions” in the will	Phrase requires sale at highest and best use (residential development)	Phrase applies to negotiations between PR and tenant and does not compel highest-and-best-use valuation	“Commercially reasonable” not ambiguous here; context shows intent to favor tenant opportunity, not command highest-and-best-use pricing
Whether Brown’s appraiser was qualified to value the property	Appraiser admitted not qualified to appraise development land, so his appraisal was inadequate	Appraiser was a general certified appraiser experienced in agricultural property and competent to value the property as used	Appraiser was qualified and disinterested; PR may rely on his appraisal without independent investigation
Standard for review of probate factual and legal determinations	N/A (procedural)	N/A (procedural)	Appellate court reviews probate factual findings for clear error and legal issues de novo; here factual findings and credibility determinations were not clearly erroneous

In re Estate of Nemetz, 273 Neb. 918 (Neb. 2007) (discusses highest-and-best-use valuation in probate context)
In re Estate of Shell, 290 Neb. 791 (Neb. 2015) (will interpretation principles)
In re Estate of Webb, 20 Neb. App. 12 (Neb. Ct. App. 2012) (probate removal and valuation issues)
Chadron Energy Corp. v. First Nat. Bank, 236 Neb. 173 (Neb. 1990) (commercial reasonableness under UCC is a fact question)
Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462 (Neb. 2008) (trial court credibility findings in bench trials)