Upon Remand and Return.

Refer to Prudential Insurance Co. v. Cusick, 369 Mich 269. The result was instructional remand for the taking- of designated testimony and for return of such testimony with a supplemental opinion of the trial chancellor (p 292).

The returned record, with transcript of proceedings on remand and the chancellor’s supplemental opinion, were filed in our clerk’s office November 14, 1963. They show that the chancellor has carried out our order, so far as the developing circumstances have permitted. It is certified to us that, since the cause came to original hearing and decree below, both agent Haney and the defendant beneficiary have deceased. Consequently, no testimony was taken. The cause is now before us for consideration and entry of final judgment, following receipt of briefs invited by the Court November 18, 1963.

My presently seated Brethren are inclined to view that, since our membership was unaware at former writing of the intervening decease of agent Haney and beneficiary Cusick, our final judgment upon remand and return should be that of reversal. I am persuaded. The point, looked upon at this juncture as well taken in view of plaintiff’s disclosed inability to comply on remand with the purpose of such remand, is that if the question of unexplained absence from the witness stand of agent Haney had *258been raiséd prior to the latter’s-death,* plaintiff conld have offered proof by the best available evidence of the fraud it claims. Plaintiff at least would have been-given the opportunity this Court sought vainly to provide by the aforesaid order of remand.

We conclude in these unforeseen circumstances that the decree below should be reversed, with costs to plaintiff, and that the cause should be remanded for entry of judgment in accordance with the prayer of plaintiff’s'bill of complaint. It is so ordered.