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In re Estate of Etmund

Supreme Court of Nebraska

August 11, 2017

In re Estate of Cora H. Etmund, deceased.
v.
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.

         2. 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.

         3. 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.

         4. 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.

         5. __: __: __. 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.

          [297 Neb. 456] 6. Wills. When language in a will is clear and unambiguous, construction of a will is unnecessary and impermissible.

         7. 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.

         8. 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 decide.

         9. 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.

         Appeal from the County Court for Lancaster County: Holly J. Parsley, Judge. Affirmed.

          Daniel E. Klaus and Sheila A. Bentzen, of Rembolt Ludtke. L.L.P., for appellants.

          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.

          Heavican, C.J.

         I. INTRODUCTION

         This 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).

         Etmund's 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 may agree.''

          [297 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 use.[1] Petitioners thereafter filed a petition for removal.

         The county court denied petitioners' petition for removal. Petitioners appeal. We affirm.

         II. BACKGROUND

         1. Factual Background

         Etmund 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.

         Etmund's 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.

         At the 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 $900, 000.

         On 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 value.''

         Following 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 given ...


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