In Matter of Roth, 291 N.Y. 1, the will provided that the nominated executor serve without compensation and pay no more than $ 1,000 for legal fees. The nominated executor was willing to serve without compensation. However, he was a judge and could not devote the time to handle the legal issues and felt that he could not obtain competent counsel to administer the estate if counsel fees were limited to those provided for in the will. He applied to the court for a determination whether the condition was binding. The surrogate found that the limitation on counsel fees was against public policy and not binding on him. The Appellate Division agreed. The Court of Appeals reversed. While noting that the provision in the will limiting the attorneys fees is normally invalid, the Court held that the provision was binding if the will provided for an alternate executor if the original executor was unwilling to abide with the will's restriction. "The problem would be different if, without specifying an alternative, the testator had nominated only the petitioner as his executor and trustee and had attempted by his will to dictate the choice of his executor's counsel and to fix the maximum amount of fees which could be paid for legal services. Such limitations, in cases where the wills involved prescribed no legal alternatives, have met with disapproval when challenged in our courts." (id. at 4-5). The court went on to enforce the condition upon the original executor. "Upon the record at hand the testamentary condition precedent to the petitioner's qualification and service as executor and trustee of the decedent's will may not be ignored. To do so would permit the petitioner to serve in that capacity without regard for the conditions expressly imposed by the testator; it would give no effect to the alternative unconditional nominations made by the testator; it would disregard the plan for the administration of his estate as to which his intention was clearly and definitely expressed." (id. at 5-6).