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IN RE ESTATE OF ETMUND

Cite as 297 Neb. 455

In re Estate of Cora H. Etmund, dec

Jean Holubar et al., appellants, v. Cheryl A. B

Personal Representative of the Est

Cora H. Etmund, deceased, appel

___ N.W.2d ___

Filed August 11, 2017. No. S-16-804.

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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/13/2017 12:11 AM CDT
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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: Holl

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, Cas

Kelch, and Funke,

Heavican, 

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.”
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IN RE ESTATE OF ETMUND

Cite as 297 Neb. 455

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 Backg

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 

1 Brief for appellants at 14.
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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 
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. . . Petitioners” and restraining Brown from closing on the 

sale until March 1. Petitioners were given until March 1 to 

complete their investigation as to a commercially reasonable sale.

Pursuant to the court’s order, petitioners hired a licensed 

real estate appraiser to do an appraisal of the subject property. Petitioners’ appraiser testified that the total value of the 

property was $1,457,000 and determined that the “highest and 

best use [was] residential development with interim agricultural use.” Petitioners filed a certification of completion of 

investigation as to commercially reasonable sale and stated 

that according to their appraisal report, the subject property 

had a value that exceeded the price at which Brown agreed to 

sell it by $557,000.

Petitioners also filed a petition for formal probate of the 

will, determination of heirs, and appointment of successor 

copersonal representatives after removal of the personal representative; for accounting by personal representative; and 

for accounting by agent under power of attorney. The petition stated that “it is in the best interests of the Estate that 

Dale Etmund, Sr. and Jean Holubar be appointed as Successor 

Co-Personal Representatives of the Estate.” Following 

a hearing, the county court denied the petition. Petitioners 

appeal.

2. Testimoy in S

of Appraisa

(a) Appraiser for Petitioners

The appraiser hired by petitioners testified that the “highest and best use analysis is the cornerstone of any appraisal.” 

Using this analysis, petitioners’ appraiser testified that the 

highest and best use of the subject property was residential 

development with interim agricultural use, because he “saw 

that there was potential there.” He reasoned, “[Y]ou can . . . 

divide [the] property by 20 acres, . . . clump those together in 
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what is called a Community Unit Plan, . . . [build] houses in 

one area, and then the rest of it is then restricted use until . . . 

you would have a zoning change.” He stated that he had seen 

this approach done “multiple times” in the corridor in which 

the property is located.

However, in the report he gave to petitioners, the appraiser 

cited to a map in evidence entitled “2040 Priority Growth 

Areas.” In explaining the map, petitioners’ appraiser stated 

that “[t]he tiers, as they are laid out, [are] where [the Lancaster 

County Engineer] anticipate[s] . . . the city could potentially 

grow. This is completely based on drainage basins for sewer.” 

The subject property is in “Tier II,” which, according to the 

accompanying text on the map, indicates that the city anticipates development will occur in approximately 2060, based 

on when the sewer is projected to reach the property. In his 

report, petitioners’ appraiser stated that based on other developments in the area, including the projected construction of 

a “South Beltway,” he “estimate[d] the city will expand to 

the subject property and the subject property will include city 

services much sooner than 2060.” However, the report does 

not specify by which year that might occur. There was no testimony explaining the discrepancy in the estimates of when city 

services will be available.

As part of his analysis, petitioners’ appraiser also looked 

at comparable sales in the surrounding area, but he admitted 

that some of these sales were in “probably better areas.” He 

further testified, “I had the high end, I had the low end, and 

somewhere in the middle, . . . and it gives me a good idea of 

where I believe it should fall.”

Petitioners’ appraiser incorporated into his testimony of the 

total valuation the valuation of the house and surrounding 4.59 

acres performed by a certified appraiser at the same appraisal 

company. By viewing comparable sales, this appraiser valued 

the house and surrounding 4.59 acres at $110,000 and characterized the home as being in “fair condition.”
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(b) Appraiser for Personal 

Representative

The appraiser hired by Brown to appraise the property was 

a licensed general certified appraiser, real estate broker, and 

crop insurance agent. In reaching his appraisal value, Brown’s 

appraiser testified that he inspected the property and “used 

the three approaches to value: the sales comparison approach, 

the income approach, and the cost approach.” He determined 

that “the highest and best use is agriculture, dry land row crop 

reduction, and cattle grazing.” Brown’s appraiser further stated 

that “another highest and best use of the subject property was 

rural residential acreage use” for the part of the property with 

a building site and improvements. Brown’s appraiser testified 

that he assigned a value to the land for agricultural use and 

that he did not consider himself competent under the Uniform 

Standards of Professional Appraisal Practice to appraise property for development.

Brown’s appraiser testified that he considered other uses of 

the property besides agriculture, but explained:

[A]s I looked at it from a feasible standpoint, I felt what 

the — what a potential buyer would pay for land . . . it 

wasn’t financially feasible because by the time you do the 

development cost in it, and then I researched the market 

to see what three- to five-acre tracts of land were selling 

for, there wasn’t enough profit margin in my opinion for 

a developer to take that risk.

In his appraisal, Brown’s appraiser relied on comparable 

sales with a similar type of cropland soil quality. He characterized the home as “poor condition,” noting that it had been 

vacant since about 2009. He also estimated the building site 

to be 5 acres, valued the building and site improvements at 

$83,450, and stated that in his opinion, the value of the subject 

property was $785,859. He further testified that he conducted 

the appraisal in accordance with the Uniform Standards of 

Professional Appraisal Practice.
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IN RE ESTATE OF ETMUND

Cite as 297 Neb. 455

III. ASSIGNMENT OF ERROR

Petitioners assign, restated, that the county court erred in 

finding that petitioners did not show cause for removal of 

Brown as personal representative of the estate.

IV. STANDARD OF REVIEW

[1] 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.2

 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.3

[2] 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.4

[3] The probate court’s factual findings have the effect of a 

verdict and will not be set aside unless clearly erroneous.5

V. ANALYSIS

Petitioners contend that Brown failed to sell the property “under commercially reasonable terms and conditions” as 

directed by the will, and thus removal is in the best interests 

of the estate. Petitioners argue that the will directs Brown “to 

arrive at a commercially reasonable price or value, which, in 

the case of real estate, means valuing land at its highest and 

best use”6 of commercial developmental property with interim 

agricultural use.

2 In re Estate of Nemetz, 273 Neb. 918, 735 N.W.2d 363 (2007).

3 Id.

4 In re Estate of Shell, 290 Neb. 791, 862 N.W.2d 276 (2015).

5 In re Estate of Webb, 20 Neb. App. 12, 817 N.W.2d 304 (2012).

6 Brief for appellants at 10.
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Cite as 297 Neb. 455

Section 30-2454(b) provides that “[c]ause for removal exists 

when removal would be in the best interests of the estate, or 

if it is shown that a personal representative . . . has mismanaged the estate or failed to perform any duty pertaining to 

the office.”

Section 30-2450(a) provides in relevant part:

On petition of any person who appears to have an interest 

in the estate, the court by temporary order may restrain a 

personal representative from performing specified acts of 

administration, disbursement, or distribution, or exercise 

of any powers or discharge of any duties of his office, 

or make any other order to secure proper performance of 

his duty, if it appears to the court that the personal representative otherwise may take some action which would 

jeopardize unreasonably the interest of the applicant or 

of some other interested person. Persons with whom the 

personal representative may transact business may be 

made parties.

And Neb. Rev. Stat. § 30-2464(a) (Reissue 2016) states that 

a personal representative is “under a duty to settle and distribute the estate of the decedent in accordance with the terms of 

any probated and effective will and this code, and as expeditiously and efficiently as is consistent with the best interests of 

the estate.”

[4,5] 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.7 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 

7 In re Estate of Ritter, 227 Neb. 641, 419 N.W.2d 521 (1988).
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meaning of words used in the will, and assume that the maker 

of the will understood words stated in the will.8

1. “Commercially Reasona

Rather than address the term “commercially reasonable” in 

a vacuum, as petitioners’ argument suggests, this court must 

examine Etmund’s will in its entirety. The phrase “commercially reasonable terms” is used in the will to refer to negotiations for sale of the property between the personal representative and Talcott.

[6,7] When language in a will is clear and unambiguous, construction of a will is unnecessary and impermissible.9

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.10

According to Etmund’s will, Brown, as personal representative, has “full power in her discretion . . . to sell at public or 

private sale, without order of court, any real or personal property belonging to [Etmund’s] estate.”

As mentioned above, Talcott is a current tenant who farms 

the property at issue. According to Brown’s testimony, Etmund 

inherited the property from a brother in 2002. Talcott has 

been one of the farm tenants on the property since 1993, 

when Etmund’s brother owned the property. The will directs 

the personal representative to provide the “current farm tenant, . . . Talcott,” with the first opportunity to purchase the 

property. Such characterization of Talcott in the will indicates 

that Etmund’s intent was to provide Talcott an opportunity to 

continue to pursue his livelihood of farming on the property, 

which he had been doing prior to Etmund’s ownership of 

the property.

8 Id.

9 Id.

10 Id.
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The will further directs that “Talcott be given the opportunity to purchase said real estate before any other” and states, 

“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.” Therefore, other passages in the will provide 

a basis for the county court’s finding that “commercially reasonable terms and conditions” are between the personal representative and the tenant farmer.

While, as petitioners argue, the will does not explicitly 

state that the property must be sold as agricultural property, 

the testator’s intent of such a sale can be discerned from the 

rest of the sentence quoted above and the sentences following 

it. In contrast, nowhere in the will does Etmund state that she 

desires the highest price or the best use for the property; nor 

does the rest of the will support that reading.

Petitioners cite In re Estate of Webb11 and Reeves v. 

Associates Financial Services Co., Inc.,

12 for the proposition 

that a personal representative should be removed if he or she 

attempts to sell the decedent’s home at a price lower than the 

appraiser’s value. We find that both of those cases involve different factual scenarios and are not applicable to the current 

set of facts.

[8,9] Furthermore, this court has held that 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.13 In a bench trial of an action at law, the trial court 

is the sole judge of the credibility of the witnesses and the 

11 In re Estate of Webb, supra note 5.

12 Reeves v. Associates Financial Services Co., Inc., 197 Neb. 107, 247 

N.W.2d 434 (1976).

13 See Chadron Energy Corp. v. First Nat. Bank, 236 Neb. 173, 459 N.W.2d 

718 (1990).
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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.14

In this case, the county court had to determine whether the 

price of $900,000 was commercially reasonable for the property based on two competing appraisals. The county court was 

presented with the appraisals, weighed the evidence, evaluated 

the credibility of the witnesses, and found Brown’s appraiser 

to be more credible.

In light of the surrounding language in the will, its phrase 

“commercially reasonable terms” could not reasonably be 

interpreted as meaning the “highest and best” use of residential development.15 As this is a question of law, we conclude 

that the term “commercially reasonable” as used in the will 

is not susceptible to two reasonable interpretations or meanings and is thus not ambiguous. Furthermore, we hold that 

the county court did not clearly err in its factual findings that 

“commercially reasonable” was not ambiguous and that Brown 

sold the property “under commercially reasonable terms and 

conditions” to Talcott in selling it at a price based on the 

appraisal by a certified appraiser who valued the property as 

agricultural use.

2. Personal Representat

Discretion Wit

to Appraisa

We turn next to petitioners’ contention that Brown’s 

appraiser was not qualified to appraise the land at issue, and 

by extension that Brown should be removed as personal representative for hiring that appraiser and adopting his appraisal.

Neither party contends that the purpose of the will is contrary to a rule of law or public policy. As such, this court is 

14 Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462, 748 N.W.2d 1 

(2008).

15 See brief for appellants at 10.
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concerned only with giving effect to the intent of the testator.16 Etmund’s will gives broad discretion to Brown as personal representative. Brown employed both a general certified 

appraiser and an attorney to advise her in the performance of 

her administrative duties and acted upon their recommendations. This she is allowed to do. Neb. Rev. Stat. § 30-2476 

(Reissue 2016) provides that except when otherwise restricted 

by the will, the personal representative, “acting reasonably for 

the benefit of the interested persons,” may employ persons to 

advise and may “act without independent investigation upon 

their recommendations.”17 And Neb. Rev. Stat. § 30-2468 

(Reissue 2016) explicitly states that the personal representative may employ a “qualified and disinterested appraiser” to 

determine the fair market value of any asset of value that may 

be subject to reasonable doubt.

Petitioners contend that the admission by Brown’s appraiser 

that he was not qualified to appraise development property 

meant he used a “limited approach” in his appraisal, thus 

calling into question whether he was qualified to appraise 

the property.18

As noted above, the property at issue was used as agricultural land by the current tenant and is zoned as agricultural. 

Brown’s appraiser held a general certified appraiser’s license, 

a real estate broker’s license, and a crop insurance agent’s 

license. He had significant experience appraising farms, particularly farms in Lancaster County. Brown’s appraiser testified that he considered whether the property could be sold 

for residential developmental use, but determined it was not 

“financially feasible” based on his analysis of the profit margin for a developer. He did not appraise the land for residential development. His testimony that he was not qualified to 

16 See In re Estate of Ritter, supra note 7.

17 § 30-2476(21).

18 Brief for appellants at 15.
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appraise development property does not make him unqualified 

to appraise the property at issue.

Brown’s appraiser’s licensing, experience, and testimony 

indicate that he was qualified to appraise property he deemed 

agricultural. Furthermore, there is no testimony to indicate 

that Brown’s appraiser had an interest in the estate. Thus, 

Brown’s appraiser was a qualified and disinterested appraiser, 

and Brown was entitled to act without independent investigation into his appraisal.

The county court applied the language of § 30-2454(b) 

and found that no cause existed to remove Brown as personal 

representative. Based on an examination for error appearing 

on the record, we conclude that the county court’s ruling conformed to the law, was supported by competent evidence, and 

was neither arbitrary, capricious, nor unreasonable. We further 

hold that the county court was not clearly erroneous in making 

its factual determination of the value of the property.

Petitioners’ assignment of error is without merit.

VI. CONCLUSION

For the reasons stated above, we affirm.

Affirme