S. Ct. Civ. No. 2013-0094

In proceedings on remand pursuant to this Court's decision in In re Estate of Small, 57 V.I. 416 (V.I. 2012), the Appellate Division erred in affirming a magistrate's award of attorney's fees and costs relating to the prior appeal because the civil action that formed the basis of the probate dispute was a personal injury case, for which attorney's fees are prohibited. Because costs in probate proceedings may not exceed those allowed in the trial of a civil action under 15 V.I.C. § 165, and an award of attorney's fees for a non-frivolous personal injury claim is prohibited in the trial of a civil action by 5 V.I.C. § 541(b), such an award is likewise prohibited in probate proceedings and on appeal from probate proceedings by operation of Supreme Court Rule 30. Accordingly, the Appellate Division erred when it affirmed the magistrate's award of attorney's fees to the estate. While the attorney's fees award was thus prohibited by the statutes and Rule, the same is not true for costs awards and, although the appellants do not challenge the reasonableness of the costs awarded in this case, in order to be valid such awards must be "reasonable" as provided in V.I.S.CT.R. 30(a). The magistrate had the authority to consider the appellants' ability to pay when devising a reasonable award of costs in light of 15 V.I.C. § 162 and the Appellate Division erred when it failed to remand the matter to the magistrate to exercise discretion in considering appellants' ability to pay. The October 4, 2013 opinion and order affirming the magistrate's award of attorney's fees and other costs to the estate is reversed, and that portion awarding other costs is remanded for further proceedings consistent with this opinion.