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But more important, MacNamara argued that despite having signed an agreement to represent Phelps and accepting a check from him, he never actually represented him because he never cashed the $2500 retainer. (MacNamara claimed he discovered the check was drawn on a worthless account; Phelps says the two men had an understanding that the undated check, drawn on the estate account, would not be cashed until Phelps was able to move funds into the estate checking account.) Instead, in a gesture both theatrical and functional, MacNamara tore the check into pieces on March 2, 1989, in the courtroom of Judge Moie Tendrich.
Tendrich was not without his own theatrical revelations that day.
Throughout the fall and winter of 1988 and the spring of 1989, Phelps had been selling off estate property in order to pay debts and beneficiaries, and his own expenses as personal representative. In an accounting filed with the court, he listed the total amount of these disbursements at $502,136 - about half of that sum going as an advance on his own inheritance.
In retrospect, Phelps says he wishes he had waited to get a court order before selling the Count's property and personally taking more than $250,000 for himself. Though not strictly required for the execution of a will, it is common practice for a personal representative to obtain a judge's permission before liquidating estate assets. Phelps says he was operating under the direction of the Count's will, which gave him the power to sell off assets "without prior or subsequent approval, adjudication, or order or direction of any court or judicial authority," and to make disbursements, including to himself as principal beneficiary. It was one of many examples in probate law of how a written will can come into conflict with the authority and discretion of the court. And to MacNamara, Phelps's flurry of land sales amounted to a "misappropriation" of funds.
In March of 1989, Phelps signed an agreement with the Count's nephew, Christer Lilliestierna, the other principal beneficiary, that recognized the estate was short of cash and pledged to sell whatever properties needed to be liquidated to pay all the beneficiaries. In July 1988, Phelps had mortgaged the Carol City kennel property he was due to receive as part of his own bequest. And with the help of a real estate broker in Maine, Phelps appraised and sold two parcels of land and transferred the proceeds to the estate bank account. He continued paying estate debts and some bequests, including $50,000 as a first installment to the Count's sister in Tennessee, who was due to inherit $100,000.
Although the sale of land in Maine had apparently never been mentioned to Judge Tendrich in court or in any court document, Tendrich certainly knew about it on March 2, 1989. And his attitude toward Phelps appeared something less than friendly, convincing Phelps that MacNamara had been talking in private with the man Phelps says the lawyer once described as his "good buddy":
The Court: Where is the money?
Mr. Phelps: We have been paying debts.
The Court: Where is the money?
Mr. Phelps: We -
The Court: What I am doing is on my own motion now. Are you serving [as the estate's representative] with a bond?
Mr. Phelps: No.
The Court: I am on my own motion. I am going to require you to file a bond in the sum of $500,000. If not I will remove you and appoint an administrator ad litem. An estate this size cannot be administered in this court without a restricted account, a bond, and I don't care what the will says. Were you related to the deceased?
Phelps: No, sir.
The Court: Are you a lawyer?
Phelps: No, sir
The Court: I'll tell you now, that's what this Court is doing.
Phelps: Yes, sir.
The Court: How much was the property sold for in Maine?
Phelps: There are two parcels which totaled $234,000.
At the request of MacNamara - and despite the fact that the Count's will explicitly stated that no bond would be required of the estate's personal representative - Judge Tendrich considered putting Phelps in jail until he could post a $500,000 bond, then enjoined him from leaving the jurisdiction and gave him 30 hours to come up with a gigantic stack of cash. Unable to raise the bond, Phelps was forced to resign as personal representative to the Count's estate and as co-trustee of the Count Tassilo Szechenyi Trust.
After Phelps claimed in open court, on March 13, 1991, that MacNamara had described himself as a personal friend of Judge Tendrich, the judge "went through the roof," according to one witness, and recused himself from the estate proceedings. Before doing so, he appointed Miami lawyer Richard Milstein administrator ad litem to the Count's estate. Less than a year later, on February 28, 1990, Milstein resigned, saying AmeriFirst and MacNamara had made it impossible for him to do his job. "AmeriFirst has failed and refused to fund the costs necessary to administer the estate in any proper fashion, in spite of its request that an administrator ad litem be appointed by this court," Milstein wrote in April 1990, in response to criticism by MacNamara of an estate accounting he had prepared. "The undersigned believes that the court should surcharge AmeriFirst Florida Trust Company and its attorney, Peter M. MacNamara, for the continued harassment and obstruction in administration of this estate...." Milstein, though awarded approximately $51,000 in fees by the court to be paid from the estate, has not yet collected any money.