after stating tbe case: We have given tbe record very careful examination and find no reason for disturbing bis Honor’s judgment. Most of tbe expenditures objected to were made by order of court, first bad, or were approved by the court after they were made, and many of them approved also by the administratrix and life tenant, entitled under tbe will to tbe income of the property, and some of tbe more important also by Olivia Maude Fisher, a defendant, one of tbe children of tbe testator, after she became of age, and when, by tbe terms of tbe will, “she was to have a voice in tbe management of her father’s estate.” It was suggested, by way of objection, that tbe investments have been made in utter disregard of tbe terms of tbe will directing “that all moneys not applied or necessary to be spent for my children shall be invested in United States securities, and when all arrive at 21 tbe fund accumulated to be divided, etc.”
Tbe will provides that tbe widow shall have tbe annual income till she dies or marries again and directs that, in case she does die or marry *381again while the children are under 21, the executor shall manage and invest the estate, using the same in support of those under 21 and paying their share to such as have arrived at that age. The clause in the will as to investments seems to refer to any surplus which might accumulate in case the widow should die or i-emarry. She has, as yet, done neither, and, in any event, there is, thus far, no case of surplus presented over and above the current needs of the family. Apart from this, the courts may at times sanction a departure from a direction of this character when such a course becomes necessary for the proper preservation of the estate. Trust Co. v. Nicholson, 162 N. C., 257; Church v. Ange, 161 N. C., 314; Jones v. Haversham,, 107 U. S., 183; Weld v. Weld, 23 Rhode Island, 311; Johns v. Johns, 172 Ill., 472.
It was objected further that the charge of five per cent allowed the present trustee is unreasonable and unjustified, but we do not concur in this view. On this there is evidence tending to show, and the referee finds, that he has been in the charge and control of an estate exceeding $100,000 in amount, since 1906; that, since his appointment, he has given the principal part of his time to its management, and under his supervision it has increased in value and the income has been greatly enhanced; that he has, during that time, built five business stores in front of the Oity Hall in -Greensboro; another large building known as the Fisher building on the corner of Elm and Market streets; that he has made loans, collected rents; that he has furnished his own bookkeeper, stenographer, office and stationery without extra charge to the estate, and, further, that at or prior to the time he entered on his duties there was an agreement between him and the administratrix and life tenant that his fees as trustee should be 5 per cent on the amount of the estate and the accruing income, this being the amount allowed, and that this agreement was approved by order of the court, and also by Olivia Maude Fisher, after she became of age, and when, as stated by the terms of the will, she was to have a voice in the management. Under such circumstances, the allowance made is fully justified, and, in our opinion, should not be disturbed even if it were now open to appellants to make their objections.
It was insisted, also, for defendants that the trustee, having been directed to invest $50,000 in a modem business building, actually expended thereon $59,997.79, and that he should be charged with the amount in excess of the preliminary order, and, further, that the building in question was an unwise investment; that it is the wrong kind of building for the character of the lot, and has, thus far, yielded inadequate returns. It is not contended or alleged that the amount as claimed by the trustee was not actually expended on this building, or that the estate has not received the benefit of it, or even that the additional expense was an undesirable outlay. It further appeared that the expenditures had been *382reported from time to time to tbe court as tbe building progressed, and tbe same were approved.
While tbe utmost degree of good faitb is exacted of a trustee, be is not always held to an assured judgment in tbe management of a trust fund or in making an investment; tbe exercise of tbe sound discretion tbat a prudent man would sbow in tbe management of bis own affairs is usually tbe approved' standard in sucb cases. Patton v. Farmer, 87 N. C., 337; S. ex rel. Cummings v. Mebane, 63 N. C., 315; 39 Cyc., pp. 291-292. On tbe facts as presented in tbe record tbe exception bas been properly overruled.
Again, exception is made that $8,000 of tbe trust fund was invested in an incorporated bank of which tbe trustee was president/ and tbat this principal has been returned with inadequate interest. Tbe rule undoubtedly is that a trustee is not allowed,- of bis own will, to invest a trust fund in bis own individual enterprise, ,and if be does so be must account either for profits realized or tbe legal rate of interest, at tbe election of tbe claimant. But it appears tbat this investment was made under a direct order of court, and further, tbat it was made with tbe knowledge and approval of Isabella Fisher, administratrix and owner of the annual income under tbe will, and tbat tbe principal, with some interest, bas been returned to tbe estate. We think this exception, too, was properly overruled.
It was further contended tbat tbe trustee bad, at different times, insured tbe properties through agencies in which be bad a pecuniary interest; but there is nothing to show tbat tbe insurance carried was other than good business management required or. tbat tbe rates were other than tbe ordinary rates for risks of like kind, and we see no reason for disallowing fees paid on tbe policies.
It is argued for appellants tbat the orders made in tbe cause do not conclude defendant appellants, inasmuch as they, or some of them, are minors, and they were made'when there was no guardian ad litem representing them of record. It is not at all clear, on perusal of tbe record, tbat the infant defendants were ever without guardian ad litem, formally appointed, of record. So far as we can discover, it only appears inferentially in the order of Judge Long, at June Term, 1909, appointing Hon. N. L. Eure as guardian ad litem, and in which order it is recited that the former guardian bad resigned. Whether tbat occurred at tbat or some preceding term does not appear, but, in any event, and in case there bad been a resignation, unless it were shown tbat tbe investments objected to were improper in themselves or worked in some way injury to the estate, or tbat tbe orders of the court in tbe premises bad been improvidently made, they .would not be set aside as a matter of course. On tbe contrary, in tbe absence of some sucb suggestion and proof tending to establish it, these orders, even if irregularly made, *383should, be confirmed by tbe court mine pro tunc. There is no claim or suggestion that the former receiver, Mr. A. L. Brooks, did not fill the full measure of his duty, and, on careful consideration, we find nothing in the record to indicate that the present trustee has not properly accounted.
The judgment of the court below is, therefore,