Bock's Estate, Matter of

• Decision Date: 30 March 1977
• Docket Number: No. 40694,40694
• Citation: 251 N.W.2d 872,198 Neb. 121
• Parties: In the Matter of the ESTATE of Frieda BOCK, Deceased. Idola Bock OVERBECK, Appellant, v. The ESTATE of Frieda BOCK, Deceased, et al., Appellees.
• Court: Nebraska Supreme Court

Page 872

251 N.W.2d 872

198 Neb. 121

In the Matter of the ESTATE of Frieda BOCK, Deceased.

Idola Bock OVERBECK, Appellant, v. The ESTATE of Frieda BOCK, Deceased, et al., Appellees.

No. 40694.

Supreme Court of Nebraska.

March 30, 1977.

Syllabus by the Court

1. The cardinal rule in construing a will is to ascertain and effectuate the intention of the testatrix, if such intention is not contrary to law.

2. An option to purchase property of an estate, whether it be at an appraised value, or at a price named or agreed upon, may be created by will.

3. Under a will providing that a son of the testatrix who, also, was designated as executor of her estate be granted an option to purchase certain real estate at its fair market value to be fixed by an appraiser named in the will, the fair market value fixed by the appraiser named in the will is controlling in the absence of bad faith or fraud.

Christensen Law Offices, Lincoln, for appellant.

F. W. Carstens, Beatrice, for appellees.

Heard before SPENCER, BOSLAUGH, NEWTON and BRODKEY, JJ., and BURKE, District Judge.

BURKE, District Judge.

Frieda Bock died testate on November 27, 1973. She appointed her sons, Ralph Bock and Oscar Bock, as executors of her estate.

The appellant, Idola Bock Overbeck, is a daughter of Frieda Bock and a devisee, legatee, and residuary distributee under the will. She appeals from an order of the trial judge approving and affirming the appraisal of Keith N. Krecklow fixing the fair market value of certain real estate covered by the will.

Clauses 3A and B of the will read:

"3. I hereby devise and bequeath all the residue of my estate as follows:

"A. A 1/3 interest to my daughter, Idola Bock Overbeck; a 1/3 interest to my daughter, Elda Bock Blount; a 1/9 interest to my grandchild, Wesley Cole; a 1/9 interest to my grandchild Cynthia Cole, and a 1/9 interest to my grandchild, Vickie Cole, in the following described real estate: The East Half (E1/2) of the Northeast Quarter (NE1/4) and the Northwest Quarter (NW1/4) of the Northeast Quarter (NE1/4) in Section Ten (10), Township Four (4), Range Three (3), Jefferson County, Nebraska.

"B. I give to my son, Ralph Bock, the right and privilege to buy the Southeast Quarter (SE1/4) of Section Three (3), Township Four (4), Range Three (3), Jefferson County, Nebraska, within six months after my death. If within six months after my death, he elects to purchase the above described real estate, the price which he shall pay therefor shall be determined and fixed by the individual or person who appraises real estate for the Federal Land Bank in Gage County, Nebraska. The executors shall obtain the services of said appraiser from the Federal Land Bank in Gage County, Nebraska, and request that he make an appraisal of said real estate to determine its fair and reasonable market value as of the date of my death. If the Federal Land Bank appraiser is unavailable or unable to make said appraisal, I then direct that the real estate firm of Eyth-Krecklow, Beatrice, Nebraska, shall make said appraisal. The price to be determined by either the Federal Land Bank appraiser or Eyth-Krecklow shall be the purchase price which Ralph shall be required to pay for said real estate if he desires to purchase.

"If Ralph elects to buy said real estate the purchase price which he pays therefor shall be distributed in the same manner and in the same proportions as provided for in the distribution of the real estate in Paragraph 3A above. If Ralph elects not to purchase said real estate, then I give said real estate in absolute title to the same persons in the same proportions as set out in Paragraph 3A above, it being my intention that either the purchase price derived from the sale of said real estate to Ralph, or the real estate itself, if Ralph elects not to buy, shall be given to and be received by my daughters, Idola Bock Overbeck, and Elda Bock Blount, and the children of my deceased daughter who are Wesley Cole, Cynthia Cole and Vickie Cole."

Pursuant to the directions of the testatrix the lawyer for the executors first contacted Willis J. Berry, manager of the Federal Land Bank Association in Gage County, and requested that he appraise the real estate in Jefferson County. Mr. Berry declined the request stating that company policy prohibited such activity.

Next, the attorney, pursuant to the directions of the testatrix, contacted and retained Mr. Krecklow of the real estate firm of Eyth-Krecklow to appraise the real estate in Jefferson County.

On April 2, 1974, Mr. Krecklow submitted a...