Appellee sued appellant to recover for support, maintenance and treatment furnished W. C. Breckeen, Deceased, while a patient in the Austin State Hospital, the Confederate Home for Men at Austin and the Terrell State Hospital.
At a non-jury trial appellee recovered judgment for $3,610.98 upon an agreed statement of facts.
W. C. Breckeen and Carrie C. Breckeen were husband and wife and during their marriage W. C. Breckeen was adjudged to be a person of unsound mind and on or about September 8, 1948, he was admitted to the Austin State Hospital. Afterwards he was transferred to the Texas Confederate Home for Men at Austin and later to the Terrell State Hospital where he died June 1, 1955. The amount due for his support, maintenance and treatment was $3,610.98 and he did not own an estate sufficient to pay that amount.
Carrie C. Breckeen survived her husband and was possessed of property, admittedly her separate estate, of a value in excess of $10,000. Upon her death, January 18, 1956, she left this estate and appellant, R. H. Finney, was appointed her administrator. During all of the time that W. C. Breckeen was a patient in the above institutions and now, the separate estate of Carrie C. Breckeen was and is sufficient to pay for the support, maintenance and treatment furnished him.
Sec. 2 of art. 3196a, Vernon's Ann.Civ.St., provides:
"Where the patient has no sufficient estate of his own, he shall be maintained at the expense:
"Of the husband or wife of such person, if able to do so; * * *"
The points presented by this appeal question the validity of the liability of the wife and her separate estate created by section 2 supra.
Art. 3196a supra was passed by the 45th Legislature in 1937. Acts 1937, 45th Leg., Ch. 152, p. 293. Section 6 of the Act in part provides that:
"Article 3189, Revised Civil Statutes of Texas of 1925, and all laws and parts of laws in conflict with this Act, be and they are hereby expressly repealed."
Appellant's three points are to the effect that: (1) the indebtedness sued on is a community debt of W. C. Breckeen for which the separate property of the wife is not liable under art. 4616, Vernon's Ann. Civ.St., (2) art. 4616 supra is not expressly or impliedly repealed by art. 3196a, and (3) art. 3196a does not purport to make the indebtedness sued on an original debt of the wife but attempts to make the wife liable for an original debt of the husband.
Art. 4616 Vernon's Ann.Civ.St. is:
"Neither the separate property of the wife, nor the rents from the wife's separate real estate, nor the interest on bonds and notes belonging to her, nor dividends on stocks owned by her, nor her personal earnings, shall be subject to the payment ...