¶1delivered the opinion of the court:
¶2It will be seen from the above statement of facts that Charles A. Mason claims title to the undivided one-third interest of said land by reason of the will and codicils of his father or by the deed executed by his father to his brother, William H., in trust. In the view we take we deem it unnecessary to discuss the question as to which of the instruments he obtained any interest in the property under, as in neither event would he have Such an interest as would give him a right of partition.
¶3Section 1 of the Partition act provides: “That when land,, tenements or hereditaments are held in joint tenancy, tenancy in common or coparcenary, whether such right or title is derived by purchase, devise or descent, or whether any or all of the claimants are minors or of full age, any one or more of the persons interested therein may compel a partition thereof by bill in chancery,” etc.
¶4Appellant contends that he is tenant in common with his two brothers, and so alleged in the bill; but the averment in his bill is a conclusion of law reached by the pleader and is not borne out by the allegations of fact alleged in the bill. Conclusions of law set out in a bill by the pleader are not admitted on demurrer, as facts as alleged in the bill, and not conclusions of law, are what govern in determining whether or not a bill is good on demurrer. ■ Legal conclusions may be treated as surplusage. (12 Ency. of PI. & Pr. 1028.)
¶5The facts as recited in the bill do not show that appellant is interested in the property in question as a tenant in common or as a joint tenant. By neither the will of his father as modified by the codicils, nor by the trust deed front his father, Solomon Mason, to his brother William H. Mason, does appellant take any legal estate in the land described in the bill. By the will and codicils it is to be held by the trustee during the life of complainant, with power in the trustee to sell and convert the same and re-invest the fund and to pay to complainant the rents, profits and incomes from the same, at such time and times as the prudence and the judgment of the trustee and the advice of Samuel B. Mason (another brother of complainant) may deem right and proper, and upon the death of complainant leaving children him surviving, the fee or corpus is to go to them, and in default thereof, for other purposes designated in the will. By the trust deed the trustee is vested with the legal estate, with power to sell the land and either loan the money or invest the same in other lands, and to pay the net income from the same, above repairs and taxes, to appellant. The trusts imposed by both the will and the trust deed are active trusts, and not. such as are executed by the Statute of Uses. Nor does appellant allege in his bill that there was fraud or collusion between his brothers, or that the property did not sell for its full value, which averments would be necessary in a bill to set aside the deeds, before the court would be warranted in setting them aside, if such was the prayer. (Dickson v. Nezu York Biscuit Co. 211 Ill. 468.) Besides, if the deeds were to be held to be null and void, still appellant would not have such an interest, as shown by the facts in the bill, as would give him the right of partition. He would be left in the same position as he was at his father’s death, with the title to the property in William H. instead of in Samuel B., as it now stands, as there is no allegation in the bill nor a prayer asking that either the deed from his father to William EL in trust be declared null and void, or that the will and codicils be declared null and void or set aside or that the trustee be removed. It is true that there is an averment that the property was owned in fee simple by Solomon Mason, the father, at the time of his death; but as above said, this is simply a conclusion of the pleader and is not borne out by the facts as alleged in the bill.
¶6Under this condition of the record the chancellor could not do otherwise than sustain the demurrer, and the decree of the circuit court is accordingly affirmed.
¶7Decree affirmed.