The defendant appealed from the trial court's judgment to the Appellate Court, which rejected the defendant's contention that he was not subject to equitable subrogation and affirmed the judgment. Allstate Ins. Co. v. Palumbo, supra, 109 Conn. 733. In so doing, the court relied on DiLullo v. Joseph, 259 Conn. 847, 792 A.2d 819 (2002), and Wasko v. Manella, supra, 269 Conn. 527, as setting forth the controlling principles.

In Bradford v. Bradford 5 Conn. 127, it was held that in a scire facias brought to obtain an execution on a former judgment in ejectment, it is incompetent for the defendant to controvert the title determined by such judgment; that if he has acquired a new title since the original judgment, he may maintain an action founded on such title, but cannot set it up in defence to the scire facias. B. P. Cilley and C. R. Morrison, for the defendant, cited, on the question of paramount title, Hedge v. Holmes, 10 Pick. 380, Bailey v. March, 3 N.H. 274, Bell v. Woodward, 34 N.H. 90, Stark v. Brown, 40 N.H. 345, Wheeler v. Bates, 21 N.H. 460, Wilson v. Webster, 6 N.H. 419, Cronin v. Hazeltine, 3 Allen 324, Shears v. Dusenbury, 13 Gray 292, Bradford v. Bradford, 5 Conn. 127, Washburn R. P. 598, and Jones Mort., ss. 952, 1300, 1305. DOE, C. J.

This becomes a bit confusing, however, when the cases continue to cite to Lockwood. SeeHills v. Hart, 88 Conn. 394-97 (1914) and the appeal of Bates v. Wheeler, 109 Conn. 733 (1929). Clearly, this is a claim for reimbursement against the decedent's estate and, as such, this court is convinced that the proper standard with respect to the burden of proof is indeed clear and convincing evidence.

The law concerning what is necessary to meet that burden of proof is clear. In Bates v. Wheeler, 109 Conn. 733 (1929) the court stated, at page 734: ". . . we find little or no support for the contention that the will was procured through undue influence exercised by Mr. or Mrs. Wheeler. At the most it rests upon unstable inference and insecure suspicion. The trial court was right in holding that neither by direct evidence, nor by inference or opportunity offered to exert undue influence, was there a safe foundation of material facts proven, or of inferences which fairly and convincingly lead to the conclusion of undue influence.

Yet from a careful perusal of all the evidence, I am unable to find any facts proven, or to draw any inferences, which would reasonably and logically lead me to the conclusion of the existence of undue influence. Such a conclusion, if drawn, would rest wholly on surmise or suspicion, and this is not sufficient. Bates v. Wheeler, 109 Conn. 733, 734. It is true that the will was drawn and executed in the defendant's home only twenty-four hours after the testatrix was brought there by her and that she was then old and sick and in bed.