delivered the opinion of the .Court.
By an order made by a referee in bankruptcy under § 60 (d) of the Bankruptcy Act, 11 U.S.C., 96 (d), appellants .were directed to turn over to the trustee in bankruptcy the sum of $2,000, which was part of an amount paid to them by the bankrupt corporation for legal serv *474 ices rendered shortly before the filing of an involuntary petition. The order was sustained by the District Court, In re David Bell Scarves, Inc., 52 F. (2d) 755, and by the Circuit Court of Appeals. 61 F. (2d) 771. This Court granted certiorari.
The only question presented is raised by the; appellants’ challenge of the jurisdiction of the referee to reexamine the payment under § 60 (d). The payment was made on November 5, 1930, and the petition in bankruptcy was filed twelve days later. There is no room for controversy as to the facts which are thus stated by the Court of Appeals: The corporation was in financial difficulties and unable to meet ' its maturing obligations. Prior to retaining the appellants,- it had engaged another attorney to negotiate a settlement with its creditors, and a meeting with some of its creditors had been held. Apparently the appellants were retained to supplement the efforts of that attorney, to whom $750 had already been paid upon a promised fee of $2,000. The testimony of one of the appellants, given at an examination under § 21a, was to the effect that he was to negotiate with creditors for a 50 per cent, cash settlement and was to assist the corporation in hypothecating its accounts receivable in order to obtain the necessary'money to carry out such a settlement. His affidavit, submitted in opposition to the referee’s jurisdiction, stated that the most extreme course which was within the contemplation of himself and David Bell, bankrupt’s president, was continuance of the business under an equity receivership, although that course was not contemplated if the business could be continued under the supervision of a committee of creditors or of a representative of the New York Creditors’ Adjustment Bureau, Inc. It. also appeared that within two weeks prior to November 5th, when the appellants’ retainer was paid, David Bell had withdrawn *475 $1,500 from the corporation, and his brother, .¿n employee, had withdrawn $750. The cash resources of the corporation were so low that appellants’ retainer could not be paid until a sale of merchandise was made, and ther purchaser’s check for $2,500 was then indorsed to appellants.
The District Court concluded that the thought of bankruptcy was the impelling motive of the debtor corporation when its president retained appellants. And the Court of Appeals was of the opinion that in these circumstances the payment was made “ in contemplation ”, of bankruptcy within the meaning'of § 60 (d). 1
That provision has been held to be
sui generis.
It does not contemplate a plenary suit, but a summary proceeding.
In re Wood & Henderson,
The language of the provision, and the indicated scope of the .legal services embraced within it, distinguish it.
*476
from the provision of § 64b (3), 30 Stat. 563; 11 U.S.C. 104 (b) (3),
2
with respect to the priority of a reasonable attorney’s fee in the distribution of an estate in bankruptcy.
3
See
Furth
v.
Stahl,
205 Pa. St. 439, 442;
We agree with the Court of Appeals that the criteria of jurisdiction to reexamine are distinct from the criteria of the decision on the merits. As to the jurisdiction' to reexamine, the controlling question is with respect to the state of mind of > the debtor and whether the thought •of bankruptcy w*as the impelling cause of- the transaction. Compare
United States
v.
Wells,
In this view, we are unable to conclude that the question whether the services for which the payment or transferís made are “ germane to thp aims of the Bankruptcy Act,” as suggested in some of 1 the decisions, 4 furnishes the test of the' jurisdiction to reexamine. The test ‘of jurisdiction, we repeat, is given by the express language of the statute. In the exercise, of jurisdiction, all questions bearing upon the reasonableness of the transaction, including the purpose and nature of the services, .are open to consideration. But it is insisted, in the instant case, that the payment to appellants could not properly be regarded as made in contemplation of bankruptcy, and hence within* the jurisdiction to reexamine, because the payment was for the purpose of engaging appellants to conduct negotiations with creditors in order tq arrange for an extension of time, and, if necessary, for the operation of the business' under the creditors’ supervision, and thus to avoid a forced liquidation and ultimately to restore the business to á sound basis.' We find no ground for saying that the fact that such purposes were in view establishes, as matter of law, that the payment was not in contempla *479 tion of bankruptcy. On the contrary, negotiations to prevent bankruptcy may demonstrate that the thought of bankruptcy was the impelling cause of the payment. “A man is usually very much in contemplation of a result which he employs counsel to avoid.” Furth v. Stahl, supra. See, also, In re Klein-Moffett Co., 27 F. (2d) 444; Slattery v. Dillion, 17 F. (2d) 347; In re Lang, 20 F. (2d) 239.
We are of the opinion that the court had jurisdiction to make the order under review;
Affirmed.
Notes
Section 60 (d) provides' as follows: “(d) If a debtor shall, directly or indirectly, in contemplation of the filing of a petition by or .against him, pay money or transfer property to an attorney and counselor at law, solicitor in equity, or proctor in admiralty for services to be rendered, the transaction shall be re-examinéd by the court on petition of the trustee or any creditor and shall only be held valid to the extent of a reasonable amount to be determined by the court, and the excess may be recovered by the. trustee for the benefit of the estate.”
Section 64b (3) provides: “(b) The debts to have priority, except as herein provided, and to be paid in full out of bankrupt estates, and the order of payment shall be'\ . . (3) the cost of administration, . . . and’ one reásonable attorney’s fee for the professional services actually rendered, irrespective of the number of attorneys employed, to the petitioning creditors in involuntary cases, to the (bankrupt in involuntary cases while performing the duties herein prescribed, and to the bankrupt in" voluntary cases as the court may allow; ...”
Cf.
In re Kross,
See
In re Habegger,