(dissenting) :
I am unable to concur in the disposition of this case by summary judgment and believe it should be remanded for trial de novo on the merits.
The failure of appellant to follow up the rejection of the claim against Mr. Gibson’s estate by filing suit, is a final bar to any claim against the estate, against Mrs. Gibson as executrix and against her as an heir or devisee. The sole question remains then whether she can be personally held liable to appellant. She cannot be held personally liable merely because an overpayment or even wrongful payment was made to her husband and the use of the money by the community.
She can be held liable only if she actively participated in the receipt of this money under circumstances charging her with notice that the payment was improper. At the administrative hearing the question was asked by the chairman:
“Let me ask the question again. Do you know or did you know that at the time Mr. Gibson was given State Disability payments under the State Retirement System, that the two vouchers contained a statement on the reverse side thereof that T, the undersigned payee, affirm that I am not now drawing a Federal Old Age and Survivor’s *618Insurance System benefit and that I do not have an application now pending’ ?”
“A. No, he thought he was entitled to both. I did not know it”
However, the administrative tribunal was not obliged to accept the uncorroborated testimony of appellee nor follow the theory that failure to read the notice on the back of the voucher was necessarily excusable.'
In the case of General Factors, Inc. v. Beck, Ariz., 409 P.2d 40 (1965), the Supreme Court held:
“The phrase ‘actual notice’ is properly distinguishable from ‘actual knowledge’ and includes notice to an authorized agent as well as generally the communication of any information enabling the recipient to acquire therefrom, by the exercise of reasonable diligence, actual knowledge. United States v. Certain Parcels of Land, etc., 85 F.Supp. 986 (S.D.Cal.1949).”
In my opinion this case should be treated as though the state had brought suit against appellee for the amount in question. There is no showing in the record how many of the vouchers were endorsed by appellee with her husband’s name. There is not enough in my opinion in this record to justify summary judgment for either party. If any judgment requiring any deduction from the pension due appellee is to be rendered (as to which I express no opinion) there is not enough evidence in the present record to determine the amount.
It is true that under the provisions of A.R.S. 12-910, trial de novo is not grant-able as a matter of right where the hearing has been transcribed. But under the unusual circumstances of this case, I believe it proper for the protection of the rights of both parties.
Note: Judge James Duke Cameron having requested that he be relieved from the consideration of this matter, Superior Court Judge John A. McGuire was called to sit in his stead and participate in the determination of this decision.