(concurring in part and dissenting in part).
I agree with the majority opinion the court did not abuse its discretion in appointing the bank as guardian over the estate of Jennie.
I would affirm the trial court on the appointment of Virginia as guardian of the person of Jennie. It must be taken into account the trial court actually viewed the witnesses and judged their credibility. The standard of review is whether the trial court abused its discretion in appointing Virginia as guardian of the person.
The term “abuse of discretion” refers to a discretion exercised to an end or purpose not justified by and clearly against reason and evidence. Herndon v. Herndon, 305 N.W.2d 917 (S.D.1981). Only a “clear” abuse of discretion warrants reversal. Rykhus v. Rykhus, 319 N.W.2d 167 (S.D.1982).
SDCL 30-27-6 states:
The circuit court, when it appears necessary or convenient, may appoint a guardian of the person and estate, or either, of a minor or of a person who is mentally ill or for any cause mentally or physically incompetent to manage his own property, such person being hereafter in this title referred to as an incompetent. The court, in appointing a guardian, is to be guided by the consideration set forth in § 30-27-19 to 30-27-25, inclusive.
See also, In Re Knott’s Guardianship, 71 S.D. 53, 21 N.W.2d 59 (1945).
*639The trial court determined that the best interests of Jennie would be served by appointing Virginia as guardian. Jennie had been living with Virginia and her husband for the past ten years and maintains a loving relationship with them. Virginia and her husband provided Jennie with constant supervision and a comfortable environment. Dr. T.H. Sattler, the Jacobsen family physician of forty years, reported to the court on November 18, 1989:
The daughter, Virginia Solberg, and her husband appear to meet her every need, and staying with the family has been a blessing and what is always advisable under a comfortable and pleasant circumstance for elderly or any individual who requires supervision and care.
The trial court, in its discretion, appointed a family member, who had developed a close relationship with her mother over a period of sixty-nine years. It was Virginia who cared for her on a day-to-day basis. There was a strong bond between Virginia and her mother. Rather than placing Jennie in the impersonal environment of a nursing home, the trial court decided that it would be far better to have Jennie continue to live with her daughter. Harlan argues that Virginia has mishandled her mother’s assets over the past five years in her capacity as attorney in fact. The trial court specifically stated that it “makes no finding as to waste or mismanagement of estate assets.”
The majority opinion proceeds to enter findings of fact claiming financial misconduct on Virginia’s part. In my opinion, these alleged discrepancies are not relevant to appointment of Virginia as guardian of the person. A guardian of the property and a guardian of the person have different duties and powers. 39 C.J.S. Guardian and Ward § 5, at 15 (1976). Generally, the guardian of the person may spend income from the ward’s estate only for necessary expenses of support and maintenance. Id. § 62. Normally, the guardian may not expend the principal of the estate without court approval. Id. §§ 62-63.
In contrast, the guardian of the property has general authority over his ward’s property as a fiduciary or trustee. Id. § 69. This power includes the right to possess and control the ward’s real and personal property. Id. § 72. Thus, guardians of the estate have much more control over the ward’s assets. Virginia’s alleged mismanagement is not relevant to her limited role as guardian of the person.
I agree with the majority that attorney’s fees may be awarded in guardianship proceedings pursuant to SDCL 30-26-3 and SDCL 30-25-6. However, I disagree with the application of the two-prong test in this case. The majority cites two cases: Matter of Hadleigh D. Hyde Trust, 458 N.W.2d 802 (S.D.1990); and Matter of Estate of Hafferman, 442 N.W.2d 238 (S.D.1989), both authored by Justice Sabers for the proposition that (1) the services rendered must be beneficial to the estate; and (2) the services were necessary because of laches, negligence, fraud or failure to defend an interest of the estate by the personal representative of the estate. That is the rule for the beneficiary of an estate. However, as to an executor, the rule is different. In Hafferman, we quoted Enge-bretson I, which stated that an executor or administrator is entitled to:
[Attorneys’ fees necessarily incurred in the .administration of his trust or in litigation for the benefit of the estate of his decedent, conducted in good faith and with reasonable care and prudence. (Emphasis added.)
Hafferman, 442 N.W.2d at 242 (quoting In re Engebretson’s Estate (Engebretson I), 68 S.D. 255, 259, 1 N.W.2d 351, 353 (1941)). We then noted that In re Engebretson’s Estate (Engebretson II), 68 S.D. 572, 5 N.W.2d 57 (1942), clarified the rule for reimbursement of an executor for attorney fees:
This rule is stated in the alternative, and should be understood as meaning that if the fees for service of an attorney employed by the administrator are necessarily incurred in the administration of the trust, that this is sufficient to authorize their allowance without a showing of benefit to the estate.
*640Hafferman, 442 N.W.2d at 242 (quoting Engebretson II, 68 S.D. at 577, 5 N.W.2d at 59). Thus, we stated, “under Engebretson I and Engebretson II, the administrator must show that the attorney fees were necessarily incurred in the administration of the estate or for the benefit of the estate, and that it was done in good faith and without negligence.” Id. Although this rule is not on all fours as to the facts in this case, I would rely upon it to grant both Virginia and Harlan some attorney’s fees. Both parties were acting in good faith and benefitted the estate by bringing the guardianship proceedings and by getting the issues resolved.
I am concerned that a denial of attorney’s fees will set a precedent chilling the commencement of guardianship proceedings in future cases. The Court may control abuses by obstructious litigants or needless litigation by denying fees or limiting them. I would remand to the trial court to grant both Virginia and Harlan a reasonable sum for attorney’s fees.