(after stating the facts). (1) It is strongly urged that the court erred in denying appellant’s plea of res adjudicata. It is well settled that a former judgment in order to be a bar must have been a decision of the merits of the cause. In Smith v. McNeal, 109 U. S. 426, the court, quoting from Hughes v. U. S., 4 Wall. 232, said: “In order that a judgment may constitute a bar to another suit it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must he the same, in both cases and must be determined on its merits. If the first suit was dismissed for defect in pleadings or parties, or a misconception of the form of the proceeding, or the wiant of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit.”
It is contended by appellant that the first complaint to which the demurrer was sustained was only defective and stated a cause of action and that judgment having been rendered against appellant on failure to plead further and no appeal taken therefrom, the same was binding, as an adjudication of all the rights that might have been determined therein.
If the inference m/ay reasonably be drawn from the allegations of the pleadings by a fair intendment that facts sufficient exist to constitute a cause of action or defense, the defect must be corrected by a motion to make more definite and certain and not by demurrer. Johnson v. Mantooth, 108 Ark. 36.
In Arkansas Life Insurance Co. v. American National Ins. Co., 110 Ark. 139, the court said: “In testing the sufficiency of a pleading by general demurrer, every reasonable intendment should be indulged to support it. If the facts stated, together with every reasonable inference therefrom constitute a cause of action, then the demurrer should be overruled.” It was there held that the complaint did not state a cause of action and could not be .amended by a motion to make more specific; that it was not a statement of a cause of action defectively, but a failure to state one at all.
The court quoted with approval in Luttrell v. Reynolds, 63 Ark. 258, from Freeman on Judgments: “If any. court errs in sustaining a demurrer and enter judgment for defendant thereon, when the complaint is sufficient, the judgment is nevertheless on the merits. It is final and conclusive until reversed on appeal.”
In Melton v. St. Louis, I. M. & S. Ry. Co., 99 Ark. 436, this court held that the question of the sufficiency of a cause of action raised by a general .demurrer became an issue of law, and the determination thereof by sustaining the demurrer, was an adjudication and decision by the court by which the merits of the case were determined and plaintiff having elected to stand upon his pleadings and declined .to amend his complaint, the adjudication sustaining the general demurrer became a final determination of the issue of law deciding the merits of the ease and was a final judgment which could .be set aside only upon appeal.”
There were no facts sufficiently alleged in the first complaint relative to the claim of Ella J. Cooper against the estate of the father of the plaintiff as would constitute a cause of action or warrant an adjudication of its validity. It was not stated that she had ever been married to or claimed to be the widow of Jacob H. Cooper, deceased, nor that she was illegally married to him and claimed to be his lawful widow and on that account, entitled to dower and homestead in his estate, but only that she claimed some interest by way of dower and homestead, which claim was not well founded and an averment that she had no interest whatever in said estate; the prayer asking that she be required to set up by answer any claim or right that she may have in the lands and that the same be adjudged void by the court.
(2) The complaint did not state facts sufficient, together with every reasonable inference deducible therefrom, to show that the said Ella J. Cooper was ever married to or claimed to be the wife of Jacob H. Cooper, deceased, and a dower and homestead interest in his lands on that account, and since it stated no cause of action, there was no adjudication of the merits of the controversy by sustaining the demurrer and dismissing the complaint, nor any judgment preventing the maintaining of this suit against her.
(3-4) The children of appellant’s marriage to Jacob H. Cooper, duly solemnized under the forms of law but void because of his having a former wife'living from whom he had not been divorced .at the time thereof, are protected by law, deemed legitimate and entitled to inherit ¡his estate. Kirby’s Digest, § 2640; Evatt v. Miller, 114 Ark. 84, 169 S. W. 817. But not so the mother who bore them, rand the stress and struggle of life with their father helping to accumulate the estate left at his death, who is not allowed the portion thereof belonging to the widow under the law. Her marriage was illegal, and that fixed her status. Not having been the legal wife of the deceased, she is not entitled to a division of the property which she herself helped to accumulate, notwithstanding it was through no fault of hers that she married the husband of another. Such is the law.
The findings of the chancellor are supported by the testimony and no error was committed in the rendition of the decree, which is affirmed.