In re Estate of Cora H. Etmund, deceased.
Cheryl A. Brown. Personal Representative of the Estate of Cora H. Etmund, deceased, appellee. Jean Holubar et al., appellants,
1. Decedents' Estates:
Judgments: Appeal and Error. In the absence of an
equity question, an appellate court, reviewing probate
matters, examines for error appearing on the record made in
the county court. When reviewing a judgment for errors
appearing on the record, the inquiry is whether the decision
conforms to the law, is supported by competent evidence, and
is neither arbitrary, capricious, nor unreasonable.
Decedents' Estates: Wills: Trusts: Judgments:
Appeal and Error. The interpretation of the words in
a will or a trust presents a question of law. When reviewing
questions of law in a probate matter, an appellate court
reaches a conclusion independent of the determination reached
by the court below.
Decedents' Estates: Appeal and Error.
The probate court's factual findings have the effect of a
verdict and will not be set aside unless clearly erroneous.
Decedents' Estates: Wills: Intent. The
cardinal rule concerning a decedent's will is the
requirement that the intention of the testator shall be given
effect, unless the maker of the will attempts to accomplish a
purpose or to make a disposition contrary to some rule of law
or public policy.
__: __. To arrive at a testator's intention expressed in
a will, a court must examine the decedent's will in its
entirety, consider and liberally interpret every provision in
a will, employ the generally accepted literal and grammatical
meaning of words used in the will, and assume that the maker
of the will understood words stated in the will.
Neb. 456] 6. Wills. When
language in a will is clear and unambiguous, construction of
a will is unnecessary and impermissible.
Wills: Words and Phrases. Ambiguity exists
in an instrument, including a will, when a word, phrase, or
provision in the instrument has, or is susceptible of, at
least two reasonable interpretations or meanings.
Uniform Commercial Code: Sales. The issue of
whether a sale was commercially reasonable under the Uniform
Commercial Code is a question of fact for the fact finder to
Trial: Witnesses: Evidence: Appeal and
Error. In a bench trial of an action at law, the
trial court is the sole judge of the credibility of the
witnesses and the weight to be given their testimony. An
appellate court will not reevaluate the credibility of
witnesses or reweigh testimony but will review the evidence
for clear error.
from the County Court for Lancaster County: Holly J. Parsley,
E. Klaus and Sheila A. Bentzen, of Rembolt Ludtke. L.L.P.,
Reginald S. Kuhn and Christina L. Usher, of Mattson Ricketts
Law Firm, for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
case involves a dispute as to whether the personal
representative of the estate of Cora H. Etmund (Etmund),
deceased, should be removed pursuant to Neb. Rev. Stat.
§ 30-2454 (Reissue 2016).
will directed the personal representative of her estate,
Cheryl A. Brown, to provide the current farm tenant, Norris
Talcott, with the first opportunity to purchase the subject
property "under commercially reasonable terms and
conditions as he and [Etmund's] personal representative
Neb. 457] Brown hired a certified appraiser, who valued the
subject property at $785, 859 based on its agricultural use.
Brown thereafter entered into a purchase agreement for the
subject property with the current farm tenant for $900, 000.
Jean Holubar; Paul Etmund; Dale Etmund, Sr.; and Diane
Geistlinger (petitioners), all of whom are devisees under the
will, argue that a sale at this price is not in the best
interests of the estate because, according to their
appraiser, the value of the land is $1, 457, 000 based on the
"highest and best use" for the subject property as
a residential development with interim agricultural
Petitioners thereafter filed a petition for removal.
county court denied petitioners' petition for removal.
Petitioners appeal. We affirm.
died on March 2, 2015. Etmund had a validly executed will
dated May 24, 2013. On March 17, 2015, Brown filed an
application for informal probate of will and appointment of
personal representative. Brown requested that she be
appointed to serve as personal representative. That same day,
the county court appointed Brown as personal representative
of the estate.
will states in relevant part:
A. I nominate and appoint . . . Brown as personal
representative of my estate. . . .
B. My personal representative shall have full power in her
discretion to do any and all things necessary for the
complete administration of my estate, including the power to
sell at public or private sale, without order of court, any
real or personal property belonging to my estate, and to
compromise or otherwise settle or adjust [297 Neb. 458] any
and all claims, charges, debts, and demands whatever against
or in favor of my estate as fully as I could do if living.
C. I direct my personal representative to provide my current
farm tenant, . . . Talcott, the first opportunity to purchase
the real estate owned by me under commercially reasonable
terms and conditions as he and my personal representative may
agree, it being my desire that . . . Talcott be given the
opportunity to purchase said real estate before any other. If
. . . Talcott does not wish to purchase said real estate or
if he and my personal representative are unable to come to
mutual terms of agreement for its sale, then my personal
representative is directed to sell said real estate either by
private or public sale.
time of Etmund's death, the subject property was used as
agricultural land and zoned as agricultural. The personal
representative hired an appraiser to conduct an appraisal of
the subject property. The appraiser valued the property at
$785, 859, based on its agricultural use. Brown testified
that after receiving the appraisal price, she negotiated the
purchase price with Talcott. After thinking about it for
"a couple days, " Talcott accepted the offer. On
November 18, 2015, Brown, acting in her capacity as personal
representative, entered into an agreement for sale of the
subject property with Talcott and his wife for a price of
January 7, 2016, pursuant to Neb. Rev. Stat. § 30-2450
(Reissue 2016) of Nebraska's Uniform Probate Code,
petitioners sought an order restraining the personal
representative from closing on the sale of the real estate.
Petitioners contended that the agreement provided for a sale
price that was "significantly below fair market
a hearing, on January 13, 2016, the county court filed an
order restraining the personal representative, stating that
the sale would "unreasonably jeopardize the interest of
[297 Neb. 459] . . . Petitioners" and restraining Brown
from closing on the sale until March 1. Petitioners were