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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 23-PR-0126 & 23-PR-0730
IN RE ESTATE OF JACQUELINE LAVERNE MARTIN; BRIAN MCCRAY, APPELLANT
Appeal from the Superior Court of the District of Columbia, Probate Division (2021-ADM-001449)
(Hon. Carmen G. McLean, Trial Judge)
(Submitted September 24, 2024 Decided December 19, 2024)
Ronald Dixon, with whom Charles Randolph was on the briefs, for appellant.
Ashley E. Wiggins for appellees Juanita Waller and the Estate of Jacqueline Laverne Martin.
Before BECKWITH, EASTERLY, and DEAHL, Associate Judges.
DEAHL, Associate Judge: These appeals arise from a probate matter
concerning the estate of Jacqueline Martin. For more than four decades before her
death, Jacqueline was in a romantic relationship with Herbert McCray. 1 When
Jacqueline died without a will, Herbert sought to administer and inherit her estate,
1 Given the shared last names of some of the principal players in this case, we generally refer to the relevant actors by their first names to avoid any confusion. 2
contending that he was her common law husband. Herbert then died and his son,
Brian McCray, sought to stand in his shoes to administer Jacqueline’s estate and to
inherit it on the theory that it had first passed to Herbert and became part of his estate,
which then passed to Brian. Jacqueline’s first cousin, Juanita Waller, countered with
her own petition to administer Jacqueline’s estate on the theory that she was her next
of kin because Jacqueline and Herbert were not in fact common law married. The
trial court appointed Juanita as the personal representative of Jacqueline’s estate
after concluding that—even if Herbert and Jacqueline had been common law
married—Juanita had priority over Brian to administer the estate.
The case then proceeded to trial on the question of whether Herbert and
Jacqueline were common law married; if so, it seems Brian is the rightful heir to her
estate, and if not, Juanita is apparently in line to inherit it. After a trial in which the
court effectively limited the presentation to direct evidence of whether Jacqueline
and Herbert ever had an “express mutual agreement . . . in words of the present
tense” to be permanent partners, the court ruled in Juanita’s favor. The court
concluded that there was no express mutual agreement in the present tense for
Jacqueline and Herbert to be married. Brian now appeals.
Brian’s principal argument on appeal is that the trial court erred when it
precluded him from introducing a variety of circumstantial evidence that Jacqueline 3
and Herbert had an express mutual agreement to be permanent partners. We agree
and remand the case for a new trial. While there can be no common law marriage
absent an express mutual agreement to be permanent partners, when neither partner
is available to testify (as here, where they were both deceased) such an agreement
may be inferred from the circumstances surrounding a couple’s relationship. Mesa
v. United States, 875 A.2d 79, 83 (D.C. 2005) (“[T]he existence of an agreement
may be inferred from the character and duration of cohabitation, or from other
circumstantial evidence such as testimony by relatives and acquaintances as to the
general reputation regarding the parties’ relationship.” (quoting Marcus v. Dir., Off.
of Workers’ Comp. Programs, 548 F.2d 1044, 1048 n.9 (D.C. Cir. 1976))). The trial
court improperly precluded Brian from introducing circumstantial evidence that
might have supplied an inference of such an agreement, so he is entitled to a new
trial in which he is permitted to adduce the relevant evidence on that topic.
I. Factual and Procedural Background
Jacqueline Martin and Herbert McCray were romantic partners from the
1970s until Jacqueline died in 2020. The couple never had a formal wedding
ceremony, but when Jacqueline died without a will, Herbert filed a petition for
probate, seeking to administer and inherit Jacqueline’s estate on the grounds that
they were common law married. Herbert died about fifteen months after Jacqueline 4
with his petition still pending. His son Brian then sought to have Herbert’s estate
“substituted as the Petitioner” in the matter, so that Herbert’s estate could act as the
personal representative of Jacqueline’s estate.
Jacqueline’s first cousin, Juanita, filed her own petition for probate and sought
to dismiss Herbert’s petition because his death meant that he could no longer serve
as personal representative of Jacqueline’s estate. Juanita further argued that Brian’s
attempt to substitute his father’s estate as the petitioner was ineffectual, because one
estate cannot be the personal representative of another—only a “person” can serve
in that role. D.C. Code § 20-101(j) (defining personal representative as a “person
. . . appointed . . . to administer the estate of a decedent” (emphasis added)). The
trial court agreed that Juanita should be appointed the personal representative of
Jacqueline’s estate as her next of kin with statutory priority to serve in that role. D.C.
Code § 20-303(a)(1)(H). The court reasoned that even if Herbert had priority to
serve as personal representative as Jacqueline’s surviving spouse when he was alive,
that statutory priority would not pass to Brian (or any other personal representative
of his estate) upon Herbert’s death. The trial court thus granted Juanita’s petition
for probate and named her the personal representative of Jacqueline’s estate,
dismissed Herbert’s competing petition for probate, and denied Brian’s motion to
substitute Herbert’s estate as the petitioner. 5
The trial court then turned its attention to Brian’s claims for inheritance, which
the parties agreed turned on the disputed question of whether Herbert was
Jacqueline’s surviving spouse at the time she died. If the two were married, then
Jacqueline’s estate would have passed to Herbert upon her death, and then when
Herbert died it would have become part of his estate, which Brian was apparently in
line to inherit. After discovery, the trial court denied Juanita’s motion for summary
judgment because it determined that there were genuine issues of material fact
regarding whether Jacqueline and Herbert were common law married.
The court then scheduled a trial dedicated to one question: whether Jacqueline
and Herbert had an “express mutual agreement . . . in words of the present tense” to
be permanent partners, which is one of the requirements for forming a common law
marriage. See generally Cleary v. Cleary, 318 A.3d 536, 540 (D.C. 2024) (quoting
Gill v. Nostrand, 206 A.3d 869, 875 (D.C. 2019)). Only if Brian made that first
showing would the trial proceed to a second stage concerning the other elements of
a common law marriage—namely, whether Jacqueline and Herbert had “the same
degree of commitment as the spouses in a ceremonial marriage” and “cohabitate[d]”
after their agreement. Id. (quoting Gill, 206 A.3d at 875). The trial court bifurcated
the trial in that manner in the interests of efficiency, opining that “there’s no dispute
that many people thought of [Jacqueline and Herbert] as [a] married couple” and that
they “acted like a married couple,” but expressing doubt about whether Brian’s 6
proffered evidence could satisfy the “express mutual agreement” requirement of
common law marriage. The court thus limited the parties, at the first stage of trial,
to introducing “evidence exclusively on the issue of ‘express mutual agreement,
which must be in words of the present tense.’”
Brian presented two witnesses at the first stage of the trial (there would not be
a second): himself and his wife, Tanya McCray. Brian previewed that both he and
Tanya would testify to a May 30, 2015, gathering at his home during which
Jacqueline and Herbert—in rather uncertain terms—“recommitted to their present
[t]ense marriage to each other to [be] married as husband and wife.” To the extent
they tried to testify about Jacqueline and Herbert’s relationship more broadly, they
were generally precluded from doing so.
Brian testified first. He said that Herbert separated from Brian’s biological
mother (Doris McCray) in the early 1970s, when Brian was two years old. Then in
the late 1970s, when Brian was about ten years old, Herbert introduced him to
Jacqueline, and from that point forward she was “in [his] life”—the three of them
traveled, celebrated holidays, and “did everything together.” The trial court
promptly halted the direct examination there, and directed Brian to speak
“exclusively” to whether there was a “mutual agreement in [the] present tense” to be
permanent partners. Brian’s counsel objected that he wished to adduce evidence 7
about Brian’s “relationship with [Jacqueline] and the relationship she shared with”
Herbert, but the trial judge retorted that she had already precluded evidence like that
“when [she] bifurcated the trial.” Counsel persisted that in order to evince an express
mutual agreement adequately he had to get into the relevant background of the
relationship. The court disagreed—“No, you do not need to go into the
background”—and instructed counsel to “[r]estrict yourself” to evidence of an
express mutual agreement “or you will waive the right to have [Brian’s] testimony
on that element.”
Counsel’s next question to Brian was whether Jacqueline referred to him as a
son, which Brian answered in the affirmative before the court again interrupted and
said that had “nothing at all to do with whether or not there was a mutual agreement
in [the] present tense.” Counsel again persisted that by precluding him from
“question[ing] this witness about background” the court had “put[] everything in a
vacuum that could not be filled.” The court disagreed and then gave counsel “one
more chance” to comply with the court’s orders, on threat of “waiving” direct
examination. Counsel then elicited some brief testimony about how Jacqueline had
called Brian to a May 30, 2015, family gathering, but when counsel sought to elicit 8
Brian’s reaction to that call the court terminated the direct examination, ruling that
it had gone beyond the limited scope of the limited hearing. 2
Brian’s account of the May 2015 meeting ultimately came out through his
cross- and redirect examinations. According to Brian, Jacqueline initiated that
meeting to talk through estate planning so that Herbert would be cared for if she died
before him. In her words, Herbert had “always treated [her] like a wife” and she
“look[ed] at him like [her] husband.” Brian testified that at the May 2015 meeting
Jacqueline and Herbert “basically stated that they were going to hold themselves as
man and wife,” “[t]hat [Jacqueline] looked at [Herbert] as a husband,” and that she
“always ha[d].” Herbert likewise expressed that “he looked at [Jacqueline] as his
wife.” Tanya testified along the same lines—that Herbert and Jacqueline expressed
their “love for each other” at the meeting and said that “they were in a husband and
wife relationship.”
Beyond those two witnesses, Brian sought to admit several exhibits that the
court excluded because they did not relate to any “express mutual agreement.”
2 We note that Brian’s counsel had a penchant for delving into the irrelevant (and has not shaken that tendency in his appellate briefing). For instance, counsel began his opening argument by waxing about the case’s procedural history, including detailing the judges Herbert’s petition had originally been assigned to and what had transpired at past hearings—all completely irrelevant to the matter at hand. We can only presume that influenced the court’s decision to bifurcate the trial and to give counsel little leeway to venture outside of its narrow confines. 9
These exhibits included declarations from Jacqueline’s friends that stated, among
other things, that Herbert and Jacqueline were “perceived” or “assumed to be and
treated as if they were husband and wife” by those who knew them. The court also
excluded Brian’s own affidavit, save for one of its twenty-six sentences in which he
explained that Jacqueline and Herbert called the May 2015 meeting “to announce
that they were husband and wife at that time” and were “committed to each other
like any other married couple.” The court explained that these declarations did not
speak to Herbert and Jacqueline “actually being married” or to the declarants
observing an express mutual agreement between the two at any point. Rather, in the
trial court’s view, the declarations spoke only to the couple’s behavior and shared
life, including that they “act[ed] as a husband and wife would act” and “left this
impression on others.”
Juanita testified in support of her position that the couple was not common
law married. She testified that even after the 2015 meeting, Jacqueline made
numerous statements indicating that she did not consider herself to be married. Most
of these statements came up in the context of Juanita’s assistance with Jacqueline’s
tax returns, in which Jacqueline consistently represented that she was not married
even in the years after the purported May 2015 gathering. 10
After hearing the evidence, the court generally credited all three of the
witnesses. It credited Brian’s account that Jacqueline scheduled a family meeting
for May 30, 2015, at which she “intended to announce . . . that she and [Herbert]
were husband and wife,” but found that once there, she and Herbert “did not make
an ‘express mutual agreement . . . in words of the present tense’ to be married” nor
were any actions taken “that would lead to an inference” of one. It also found that
Jacqueline had told Juanita on multiple occasions after 2015 that she was not
married. Ultimately, the trial court ruled that Brian failed to establish any express
mutual agreement between Jacqueline and Herbert to be permanent partners.
Brian now appeals.
II. Analysis
We first address Brian’s principal argument: that the trial court improperly
restricted the evidence at trial. We agree with him about that. We then address the
remainder of his arguments, none of which has merit.
A. The court improperly restricted the evidence of express mutual agreement
Brian’s lead argument is that the trial court improperly restricted the evidence
he was permitted to introduce on the question of whether Jacqueline and Herbert had
an express mutual agreement to be permanent partners. He argues that it did so by 11
bifurcating the trial into two stages and precluding him from introducing a variety
of evidence that he contends was relevant to whether Jacqueline and Herbert had an
express mutual agreement to be permanent partners. Namely, the trial court
precluded him from introducing evidence (1) about the background of Jacqueline
and Herbert’s relationship, (2) their cohabitation, (3) their reputation in the
community for being married, and (4) virtually everything beyond direct evidence
of the particular words that evinced an express mutual agreement to be permanent
partners. Juanita does not dispute that the trial court placed these restrictions on
Brian’s presentation of evidence, as the record recounted above reflects. We
generally review restrictions on a party’s presentation of evidence “for abuse of
discretion, recognizing that it is necessarily such an abuse for the trial court to
employ incorrect legal standards.” Wilson v. United States, 266 A.3d 228, 240 (D.C.
2022) (quoting In re C.A., 186 A.3d 118, 121 (D.C. 2018)).
There are three elements of a common law marriage in the District. They are:
(1) that the couple “cohabitate[d] as spouses” (2) “following an express mutual
agreement . . . in words of the present tense, to be permanent partners” (3) “with the
same degree of commitment as the spouses in a ceremonial marriage.” Cleary, 318
A.3d at 540 (quoting Gill, 206 A.3d at 875). Only the second element is directly at
issue in this appeal, but as we will explain, evidence of the first and third elements
could not be properly excluded because it is quite relevant to that second element. 12
“[T]he best evidence of an express agreement to be married is the testimony
of the parties” to that agreement. Id. at 542 (quoting East v. East, 536 A.2d 1103,
1106 n.2 (D.C. 1988)). So “[w]hen one of the parties to the alleged marriage asserts
its existence [and testifies,] but either denies or fails to say there was mutual consent
or agreement, then mere cohabitation, even though followed by reputation [for being
married], will not justify an inference of mutual consent or agreement to be married.”
Coates v. Watts, 622 A.2d 25, 27 (D.C. 1993) (quoting U.S. Fid. & Guar. Co. v.
Britton, 269 F.2d 249, 252 (D.C. Cir. 1959)); see also East, 536 A.2d at 1106 n.2
(“[W]hen one of the parties to the alleged marriage asserts its existence and testifies,
he or she must affirmatively state that there was such an agreement.”); McCoy v.
District of Columbia, 256 A.2d 908, 909-10 (D.C. 1969) (despite evidence of the
purported spouses’ cohabitation and general reputation to be married, the trial court
was “compel[led]” to find no common law marriage because the alleged widow
“failed to disclose [in her testimony] any evidence relating to such an agreement”). 3
In that instance, the testifying partner must recount an exchange that “‘inescapably
3 In Mesa, we suggested that even when the purportedly married parties are available to testify, an express mutual agreement might nonetheless be inferred from circumstantial rather than direct evidence. 875 A.2d at 83 (saying as much where the purportedly married parties were available to testify). That suggestion appears to be inconsistent with our earlier pronouncements in Coates, East, and McCoy, but because neither Jacqueline nor Herbert was available to testify in this case, we need not ultimately resolve any potential inconsistency in our precedents here. 13
and unambiguously impl[ies] that an agreement was being entered into to become’
spouses at that very moment.” Cleary, 318 A.3d at 541 (quoting Gill, 206 A.3d at
875).
But the same is not true in a case like this one, where neither Jacqueline nor
Herbert was available to testify because they were both deceased, so that the best
evidence of whether they had an express agreement was simply not available. When
that is the case, we have never held that there is a strict requirement for direct
evidence of an express mutual agreement. We have instead indicated, and today
hold, that such an agreement can “be inferred from the character and duration of [the
couple’s] cohabitation, or from other circumstantial evidence such as testimony by
relatives and acquaintances as to the general reputation regarding the parties’
relationship.” Mesa, 875 A.2d at 83 (quoting Marcus, 548 F.2d at 1048 n.9); see
also Britton, 269 F.2d at 252 n.3 (quoting Carretta v. Carretta, 58 So.2d 439, 441
(Fla. 1952) for the proposition that “proof of general repute and cohabitation as man
and wife will support a presumption of marriage when the agreement is denied and
cannot be proven by the best evidence”).
While the trial court at one point acknowledged that an agreement could be
inferred from circumstantial evidence, it erroneously precluded Brian from
presenting the very evidence that might supply such an inference. It did so broadly 14
when it bifurcated the trial and thereby precluded evidence about how Jacqueline
and Herbert cohabitated and had the same degree of commitment as the spouses in
a ceremonial marriage, which are distinct elements of a common law marriage but
can also supply circumstantial evidence of an express agreement to be permanent
partners. And it did so on a more granular level (1) when it precluded Brian and
Tanya from testifying about “the relationship [Jacqueline] shared with [Herbert],”
(2) when it barred counsel from questioning them about the couple’s reputation in
the community for being married, and (3) when it excluded witness affidavits about
Jacqueline and Herbert’s reputation in their community as a married couple on the
basis that they did not bear on whether they had an express mutual agreement to be
permanent partners. 4
In sum, the trial court’s bifurcation order and its efforts to limit the trial to
direct evidence of “the words that were used” at the May 2015 meeting erroneously
precluded Brian from making his case through circumstantial evidence. Contrary to
the trial court’s reasoning, Brian did not need direct proof of an express present tense
4 The trial court suggested that it would likely exclude the witness affidavits as hearsay “[i]f we move on to the second stage” of trial, correctly rejecting Brian’s argument that the court could take “judicial notice” of the affidavits—that is not the workaround to the rules against hearsay that counsel posited it to be. While we agree that the affidavits could have been excluded as hearsay, the only basis on which the court ultimately excluded the bulk of them was their irrelevancy to the issue of an express mutual agreement, when in fact they were relevant to that. 15
agreement to be permanent partners—that is a requirement only when one of the
partners to the purported marriage asserts its existence and testifies. See Coates, 622
A.2d at 27; East, 536 A.2d at 1106 n.2; McCoy, 256 A.2d at 909-10; Britton, 269
F.2d at 252. Brian should have been permitted to make his case circumstantially,
through evidence about Jacqueline and Herbert’s relationship, their cohabitation,
and their general reputation in the community as a married couple. Such evidence
can supply an inference of an express agreement to be permanent partners, even if
Brian and Tanya were incapable of recounting such an agreement themselves (at the
May 2015 meeting or otherwise). We therefore reverse for a new trial in which
Brian can introduce the universe of relevant evidence that was precluded at the first
trial. 5
We pause to note one additional legal error in the trial court’s analysis—it 5
opined that Jacqueline and Herbert could not have entered into an express mutual agreement to be married before 1989, when Herbert formally divorced Doris. That is not quite right. We have explained that when an express mutual agreement to be married is made at a time when there is a legal impediment to the union, such as a pre-existing marriage, “the removal of [that] impediment while parties continue to live together as husband and wife gives rise to a common-law marriage.” In re Estate of Jenkins, 290 A.3d 524, 530 (D.C. 2023) (quoting Thomas v. Murphy, 107 F.2d 268, 269 (D.C. Cir. 1939)). So a common law marriage could in fact be supported by a pre-1989 express mutual agreement between Jacqueline and Herbert to be married provided that they continued to cohabitate thereafter. 16
B. Brian’s remaining arguments lack merit
We now turn to the remainder of Brian’s arguments. He first contends that
the trial court erred when it rejected his petition to appoint Herbert’s estate as the
personal representative of Jacqueline’s estate, and he complains that the trial court
erroneously addressed that issue before determining whether Jacqueline and Herbert
were common law married. We disagree. Even if Jacqueline and Herbert were
married, that would not provide any basis to appoint Herbert’s estate as the personal
representative of Jacqueline’s estate. While Herbert himself would have statutory
priority over Juanita to serve as personal representative of her estate if he were a
surviving spouse, that priority does not pass to his estate. See D.C. Code § 20–
303(a)(1)(B), (H). And Brian has never articulated any basis on which he himself
has statutory priority over Juanita, but instead relies purely on Herbert’s own
priority, which was extinguished at the time of his death. Id. So we decline to further
examine whether Brian had any priority to represent Jacqueline’s estate in his own
right. 6
Juanita argues that this issue is “moot” because Brian ultimately rescinded 6
his request before the trial court to appoint Herbert’s estate as the personal representative. This argument confuses mootness with preservation. See Long v. United States, 312 A.3d 1247, 1256 (D.C. 2024) (“Mootness is not indexed to the particular claims raised before the trial court.”). We do not address the question of preservation because we discern no abuse of discretion in the trial court’s ruling in any event. 17
Second, Brian argues that Juanita’s petition to serve as personal representative
was “factually insufficient and fraudulent” because it was predicated on the
falsehood that Jacqueline and Herbert were not married. Not so. As we have
explained, even if Jacqueline and Herbert were married that would not confer any
priority on Herbert’s estate to act as the personal representative of Jacqueline’s
estate, and that was the basis on which the trial court granted Jacqueline’s petition.
If Jacqueline ultimately turns out to be wrong in her assertion that the couple was
not married, that would not make her petition fraudulent (there is no basis to say her
assertion was knowingly false). And it would not alter the conclusion that Herbert’s
estate had no priority to serve as personal representative.
Third, Brian argues that the trial judge was biased against him and prejudged
his case, pointing to various pretrial statements in which the trial court expressed
doubt about his ability to prove up a common law marriage. That is not any serious
evidence of bias. This court and others “have long ‘regarded common-law marriage
as a fruitful source of fraud,’” given that litigants seeking pecuniary benefit have
often made unsubstantiated claims of a common law marriage. Gill, 206 A.3d at
883 (quoting In re Estate of Danza, 188 A.D.2d 530, 530-31 (N.Y. App. Div. 1992)).
We have thus repeatedly recognized that “claims of common law marriage should
be closely scrutinized” and subjected to skepticism, given the ready availability of
“ceremonial marriage.” See, e.g., Gill, 206 A.3d at 876 (first quoting Cerovic v. 18
Stojkov, 134 A.3d 766, 776 (D.C. 2016), then quoting Bansda v. Wheeler, 995 A.2d
189, 198 (D.C. 2010)). The trial court’s own skepticism merely echoed these well-
founded sentiments.
Fourth, and finally, Brian claims that the trial court clearly erred when it held
that the evidence regarding the May 2015 meeting did not itself establish a present
tense mutual agreement between Jacqueline and Herbert to be permanent partners.
If he were right about that, it would be a basis to direct a ruling in his favor on this
question. But we disagree with him. For starters, the trial court was of course under
no obligation to credit Brian and Tanya’s testimonies about that meeting—it was
free to discredit their self-interested accounts. Putting that aside, the trial court was
correct that neither Brian nor Tanya testified to any particular words that were
exchanged that “‘inescapably and unambiguously impl[ied] that an agreement was
being entered into to become’ spouses at that very moment.” Cleary, 318 A.3d at
541 (quoting Gill, 206 A.3d at 875). Their testimonies were instead mired in vague
and conclusory descriptions of what was said. For instance, Brian testified that
Herbert “basically said he looked at [Jacqueline] as his wife,” and that Jacqueline
“basically stated that they were going to hold themselves as man and wife” and that
“she looked at him as a husband.” Tanya similarly testified that the couple said they
were in “like a spousal relationship” as “life partner[s]. Do you know what I mean?”
While those vague abstractions were not fatal to Brian’s case, since as we have 19
explained he might prove it circumstantially, the trial court was right that this was
not direct evidence of a clear and unambiguous agreement to be permanent partners
with the trappings of a marriage.
III. Conclusion
For the foregoing reasons, we reverse the trial court’s judgment in appeal
number 23-PR-730 and remand the case for a new trial. Parties can make express
mutual agreements to be permanent partners and, upon their deaths, there might be
no percipient witnesses to that agreement. In such cases, our precedents recognize
that the parties’ relationship—including how they held themselves out to others, the
extent of their cohabitation, and their reputation in the community—can supply an
inference that the couple had an express agreement to be permanent partners. While
we doubt that any amount of circumstantial evidence would ever compel a trial court
to make such a finding, the court must still permit the universe of relevant evidence
on that topic so that the fact finder’s verdict is based on all relevant and admissible
evidence.
We affirm the trial court’s ruling in appeal number 23-PR-126, appointing
Juanita Waller as the personal representative of Jacqueline Martin’s estate.