AVELINA ABARIENTOS On his death, Eulalio left behind an
REBUSQUILLO [substituted by her
heirs, except Emelinda R. Gualvez]
and SALVADOR A.
OROSCO, Petitioners,
vs.
SPS. DOMINGO and EMELINDA
REBUSQUILLO GUALVEZ and the
CITY ASSESSOR OF LEGAZPI
CITY, Respondents.
On October 26, 2004, petitioners Avelina
Abarientos Rebusquillo (Avelina) and
Salvador Orosco (Salvador) filed a
Complaint for annulment and revocation
of an Affidavit of Self-Adjudication
dated December 4, 2001 and a Deed of
Absolute Sale dated February 6, 2002
before the court a quo. In it, petitioners
alleging that Avelina was one of the
children of Eulalio Abarientos (Eulalio)
and Victoria Villareal (Victoria). Eulalio
died intestate on July 3, 1964, survived
by his wife Victoria, six legitimate
children, and one illegitimate child,
namely: (1) Avelina Abarientos-
Rebusquillo, petitioner in this case; (2)
Fortunata Abarientos-Orosco, the mother
of petitioner Salvador; (3) Rosalino
Abarientos; (4) Juan Abarientos; (5)
Feliciano Abarientos; (6) Abraham
Abarientos; and (7) Carlos Abarientos.
His wife Victoria eventually died
intestate on June 30, 1983.
After trial, the RTC rendered its Decision
untitled parcel of land in Legazpi City
consisting of two thousand eight hundred
sixty-nine(2,869) square meters, more or
less, which was covered by Tax
Declaration ARP No. (TD) 0141.
In 2001, Avelina was supposedly made
to sign two (2) documents by her
daughter Emelinda Rebusquillo-Gualvez
(Emelinda) and her son-in-law Domingo
Gualvez (Domingo), respondents in this
case, on the pretext that the documents
were needed to facilitate the titling of the
lot. It was only in 2003, so petitioners
claim, that Avelina realized that what she
signed was an Affidavit of Self-
Adjudication and a Deed of Absolute
Sale in favor of respondents.
As respondents purportedly ignored her
when she tried to talk to them, Avelina
sought the intervention of the RTC to
declare null and void the two (2)
documents in order to reinstate TD0141
and so correct the injustice done to the
other heirs of Eulalio.
In their answer, respondents admitted
that the execution of the Affidavit of
Self-Adjudication and the Deed of Sale
was intended to facilitate the titling of
the subject property.
dated January 20, 2009 annulling the
Affidavit of Self-Adjudication and the
Deed of Absolute Sale executed by
Avelina on the grounds that (1) with
regard to the Affidavit of Self-
Adjudication, she was not the sole heir of
her parents and was not therefore solely
entitled to their estate; and (2) in the case
of the Deed of Absolute Sale, Avelina
did not really intend to sell her share in
the property as it was only executed to
facilitate the titling of such property.
Assailing the trial court’s decision,
respondents interposed an appeal with
the CA arguing that the Deed of Sale
cannot be annulled being a public
document that has for its object the
creation and transmission of real rights
over the immovable subject property.
The fact that Avelina’s testimony was
not offered in evidence, so respondents
argued, the signature on the adverted
deed remains as concrete proof of her
agreement to its terms. Lastly,
respondents contended that the
Complaint filed by petitioners Avelina
and Salvador before the RTC is not the
proper remedy provided by law for those
compulsory heirs unlawfully deprived of
their inheritance.
Pending the resolution of respondents’
appeal, Avelina died intestate on
September 1, 2009 leaving behind
several living heirs5 including respondent
Emelinda.
In its Decision dated March 30, 2012, the
appellate court granted the appeal and
reversed and set aside the Decision of the
RTC. The CA held that the RTC erred in
annulling the Affidavit of Self-
Adjudication simply on petitioners’
allegation of the existence of the heirs of
Eulalio, considering that issues on
heirship must be made in administration
or intestate proceedings, not in an
ordinary civil action. Further, the
appellate court observed that the Deed of
Absolute Sale cannot be nullified as it is
a notarized document that has in its favor
the presumption of regularity and is
entitled to full faith and credit upon its
face.
ISSUE:
WHETHER OR NOT AFFIDAVIT
OF SELF-ADJUDICATION IS
VALID.
RULING:
NO.
An Affidavit of Self-Adjudication is only
proper when the affiant is the sole heir of
the decedent. (Sec. 1, Rule 74, ROC). As
admitted by respondents, Avelina was
not the sole heir of Eulalio. In fact, as
admitted by respondents, petitioner
Salvador is one of the co-heirs by right
of representation of his mother. Without
a doubt, Avelina had perjured herself
when she declared in the affidavit that
she is the only daughter and sole heir of
spouses Eulalio and Victoria. The falsity
of this claim renders her act of
adjudicating to herself the inheritance
left by her father invalid.
In effect, Avelina was not in the right
position to sell and transfer the absolute
ownership of the subject property to
respondents. As she was not the sole heir
of Eulalio and her Affidavit of
Self- Adjudication is void, the subject
property is still subject to partition.
Avelina, in fine, did not have the
absolute ownership of the subject
property but only an aliquot portion.
What she could have transferred to
respondents was only the ownership of
such aliquot portion. It is apparent from
the admissions of respondents and the
records of this case that Avelina had no
intention to transfer the ownership, of
whatever extent, over the property to
respondents. Hence, the Deed of
Absolute Sale is nothing more than a
simulated contract.
WON the deed of Sale was correctly
nullified and voided by the RTC.
- Yes
- Avelina, not be the sole her and thus
not the only owner of the subject
property, has no authority to sell
and transfer the absolute ownership
of it to respondents
- As a co-owner, she only has a right
only to an aliquot part of the
property
- Further, as stated, Avelina has no
intent to sell her share or any part of
it, hence, the deed of Absolute Sale
 is nothing more than a simulated
contract
- A simulated contract is void
- GRANTED
 MARIA SOCORRO
AVELINO, petitioner,
vs.
COURT OF APPEALS, ANGELINA
AVELINO, SHARON AVELINO,
ANTONIO AVELINO, JR., TRACY
AVELINO, PATRICK MICHAEL
AVELINO and MARK ANTHONY
AVELINO, respondents.
Petitioner Maria Socorro Avelino is a
daughter and compulsory heir of the late
Antonio Avelino, Sr., and his first wife
private respondent Angelina Avelino.
The other private respondents, Sharon,
Antonio Jr., Tracy, Patrick and Mark
Anthony all surnamed Avelino are
likewise compulsory heirs of Avelino,
Sr. Sharon, an American, is the second
wife of Avelino Sr. The other private
respondents are siblings of petitioner Ma.
Socorro.
The records reveal that on October 24,
1991, Ma. Socorro filed before the
Regional Trial Court of Quezon City,
Branch 78, docketed as SP Proc. No. Q-
91-10441, a petition for the issuance of
letters of administration of the estate of
Antonio Avelino, Sr., who died intestate
on April 10, 1989. She asked that she be
appointed the administrator of the estate.
On December 3, 1992, Angelina, and the
siblings filed their opposition by filing a
motion to convert the said judicial
proceedings to an action for judicial
partition which petitioner duly opposed.
On February 16, 1993, public respondent
judge issued the assailed Order which
reads:
Acting on the "Motion to Convert
Proceedings to Action for Judicial
Partition", considering that the
petitioner is the only heir not
amenable to a simple partition,
and all the other compulsory heirs
manifested their desire for an
expeditious settlement of the
estate of the deceased Antonio
Avelino, Sr., the same is granted.
WHEREFORE, the petition is
converted into judicial partition of
the estate of deceased Antonio
Avelino, Sr. The parties are
directed to submit a complete
inventory of all the real and
personal properties left by the
deceased. Set the hearing of the
judicial partition on APRIL 13,
1993, at 8:30 o'clock in the
morning. Notify all the parties and
their counsel of this assignment.
On March 17, 1993, petitioner filed a
motion for reconsideration which was
denied in an Order dated June 16, 1993.
On July 23, 1993, Ma. Socorro filed
before the Court of Appeals, a petition
for certiorari, prohibition,
and mandamus alleging grave abuse of
discretion amounting to lack or excess of
jurisdiction on the part of the trial court,
in granting private respondents' motion
to convert the judicial proceeding for the
issuance of letters of administration to an
action for judicial partition. Her petition
was docketed as CA-G.R. SP No. 31574.
ISSUE:
WHETHER OR NOT THE
CONVERSION OF JUDICIAL
PARTITION IS PROPER.
RULING:
YES.
Nor can we sustain petitioner's argument
that the order of the trial court converting
an action for letters of administration to
one for judicial partition has no basis in
the Rules of Court, hence procedurally
infirm. The basis for the trial court's
order is Section 1, Rule 74 of the Rules
of Court. It provides that in cases where
the heirs disagree as to the partition of
the estate and no extrajudicial settlement
is possible, then an ordinary action for
partition may be resorted to, as in this
case. We have held that where the more
expeditious remedy of partition is
available to the heirs, then the heirs or
the majority of them may not be
compelled to submit to administration
proceedings. 10 The trial court
appropriately converted petitioner's
action for letters of administration into a
suit for judicial partition, upon motion of
the private respondents. No reversible
error may be attributed to the Court of
Appeals when it found the trial court's
action procedurally in order.
When a person dies intestate, or, if
testate, failed to name an executor in his
will or the executor so named is
incompetent, or refuses the trust, or fails
to furnish the bond required by the Rules
of Court, then the decedent's estate shall
be judicially administered and the
competent court shall appoint a qualified
administrator in the order established in
Section 6 of Rule 78.5  persons as the court may direct, the court
The exceptions to this rule are found in
Sections 1 and 2 of Rule 746 which
provide:
Sec. 1. Extrajudicial settlement by
agreement between heirs. — If the
decedent left no will and no debts and
the heirs are all of age or the minors are
represented by their judicial or legal
representatives duly authorized for the
purpose, the parties may, without
securing letters of administration, divide
the estate among themselves as they see
fit by means of a public instrument filed
in the office of the register of deeds, and
should they disagree, they may do so in
an ordinary action of partition. . .
Sec. 2. Summary settlement of estates of
small value. — Whenever the gross
value of the estate of a deceased person,
whether he died testate or intestate, does
not exceed ten thousand pesos, and that
fact if made to appear to the Regional
Trial Court having jurisdiction of the
estate by the petition of an interested
person and upon hearing, which shall be
held not less than one (1) month nor
more than three (3) months from the date
of the last publication of a notice which
shall be published once a week for three
(3) consecutive weeks in a newspaper of
general circulation in the province, and
after such other notice to interested
may proceed summarily, without the
appointment of an executor or
administrator, and without delay, to
grant, if proper, allowance of the will, if
any there be, to determine who are the
persons legally entitled to participate in
the estate and to apportion and divide it
among them after the payment of such
debts of the estate as the court shall then
find to be due; and such persons, in their
own right, if they are lawful age and
legal capacity, or by their guardians or
trustees legally appointed and qualified,
if otherwise, shall thereupon be entitled
to receive and enter into the possession
of the portions of the estate so awarded
to them respectively. The court shall
make such order as may be just
respecting the costs of the proceedings,
and all orders and judgments made or
rendered in the course thereof shall be
recorded in the office of the clerk, and
the order of partition or award, if it
involves real estate, shall be recorded in
the proper register's office.1awp++i1
The heirs succeed immediately to all of
the rights and properties of the deceased
at the moment of the latter's
death.7 Section 1, Rule 74 of the Rules of
Court, allows heirs to divide the estate
among themselves without need of delay
and risks of being dissipated.
When a person dies without leaving
pending obligations, his heirs, are not
required to submit the property for
judicial administration, nor apply for the
appointment of an administrator by the
court.8
We note that the Court of Appeals found
that in this case "the decedent left no
debts and the heirs and legatees are all of
age."9 With this finding, it is our view
that Section 1, Rule 74 of the Rules of
Court should apply.

In a last-ditch effort to justify the need

for an administrator, petitioner insists
that there is nothing to partition yet, as
the nature and character of the estate
have yet to be determined. We find,
however, that a complete inventory of
the estate may be done during the
partition proceedings, especially since
the estate has no debts. Hence, the Court
of Appeals committed no reversible error
when it ruled that the lower court did not
err in converting petitioner's action for
letters of administration into an action
for judicial partition.

WHEREFORE, the petition is DENIED

for lack of merit, and the assailed
decision and resolution of the Court of
Appeals in CA-G.R. SP No. 31574 are
AFFIRMED. Costs against petitioner.
 SPOUSES GORGONIO BENATIRO
and COLUMBA CUYOS-BENATIRO
substituted by their heirs, namely:
Isabelita, Renato, Rosadelia and
Gorgonio, Jr., surnamed Benatiro, and
SPOUSES RENATO C. BENATIRO
and ROSIE M.
BENATIRO, Respondents,
vs.
HEIRS OF EVARISTO CUYOS,
namely: Gloria Cuyos-Talian,
Patrocenia Cuyos-Mijares, Numeriano
Cuyos, and Enrique Cuyos,
represented by their attorney-in-fact,
Salud Cuyos, Respondents.
Spouses Evaristo Cuyos and Agatona
Arrogante Cuyos were blessed with nine
children, namely: Francisco, Victoria,
Columba, Lope, Salud, Gloria,
Patrocenia, Numeriano, and Enrique. On
August 28, 1966, Evaristo died leaving
six parcels of land located in Tapilon,
Daanbantayan, Cebu covered by Tax
Declaration (TD) Nos. 000725, 000728,
000729, 000730, 000731, 000732, all
under the name of Agatona Arrogante.
On July 13, 1971, one of the heirs, Gloria
Cuyos-Talian (respondent Gloria)
represented by Atty. Victor Elliot
Lepiten (Atty. Lepiten), filed before the
Court of First Instance (CFI) now
Regional Trial Court (RTC), Cebu,
Branch XI,
a petition4 for Letters of Administration,
docketed as Special Proceeding (SP) No.
24-BN entitled "In the Matter of the
Intestate Estate of Evaristo Cuyos, Gloria
Cuyos-Talian, petitioner." The petition
was opposed by Gloria’s brother,
Francisco, who was represented by Atty.
Jesus Yray (Atty. Yray).
In the hearing held on January 30, 1973,
both parties together with their respective
counsels appeared. Both counsels
manifested that the parties had come to
an agreement to settle their case. The
trial court on even date issued an
Order5 appointing Gloria as
administratrix of the estate.
Subsequently, in the Order7 dated
December 12, 1975, the CFI stated that
when the Intestate Estate hearing was
called on that date, respondent Gloria
and her brother, oppositor Francisco,
together with their respective counsels,
appeared; that Atty. Yray, Francisco’s
counsel, manifested that the parties had
come to an agreement to settle the case
amicably; that both counsels suggested
that the Clerk of Court, Atty. Andres C.
Taneo (Atty. Taneo), be appointed to act
as Commissioner to effect the agreement
of the parties and to prepare the project
of partition for the approval of the court.
In the same Order, the Court of First
Instance (CFI) appointed Atty. Taneo
and ordered him to make a project of
partition within 30 days from December
12, 1975 for submission and approval of
the court.
In his Commissioner's Report8 dated July
29, 1976, Atty. Taneo stated that he
issued subpoenae supplemented by
telegrams to all the heirs to cause their
appearance on February 28 and 29, 1976
in Tapilon, Daanbantayan, Cebu, where
the properties are located, for a
conference or meeting to arrive at an
agreement; that out of the nine heirs,
only respondents Gloria, Salud and
Enrique Cuyos failed to attend; that per
return of the service, these three heirs
could not be located in their respective
given addresses; that since some of the
heirs present resided outside the province
of Cebu, they decided to go ahead with
the scheduled meeting.
Atty. Taneo declared in his Report that
the heirs who were present:
1. Agreed to consider all income
of the properties of the estate
during the time that Francisco
Cuyos, one of the heirs, was
administering the properties of the
estate (without appointment from
the Court) as having been
properly and duly accounted for.
2. Agreed to consider all income
of the properties of the estate
during the administration of
Gloria Cuyos Talian, (duly
appointed by the Court) also one
of the heirs as having been
properly and duly accounted for.
3. Agreed to consider all motions
filed in this proceedings
demanding an accounting from
Francisco Cuyos and Gloria
Cuyos Talian, as having been
withdrawn.
4. Agreed not to partition the
properties of the estate but instead
agreed to first sell it for the sum
of ₱40,000.00 subject to the
condition that should any of the
heirs would be in a position to buy
the properties of the estate, the
rest of the eight (8) heirs will just
receive only Four Thousand Pesos
(₱4,000.00) each.
5. Agreed to equally divide the
administration expenses to be
deducted from their respective
share of ₱4,000.00.9
The CFI disapproved the claim of
respondent Gloria for the sum of
₱5,570.00, as the same had been
allegedly disregarded by the heirs present
during the conference.
Sometime in February 1998, the heirs of
Evaristo Cuyos, namely: Gloria Cuyos-
Talian, Patrocenia Cuyos-Mijares,
Numeriano Cuyos and Enrique Cuyos,
represented by their attorney-in-fact,
Salud Cuyos (respondents), allegedly
learned that Tax Declaration Nos.
000725, 000728, 000729, 000730,
000731 and 000732, which were all in
the name of their late mother Agatona
Arrogante, were canceled and new Tax
Declaration Nos., namely, 20-14129, 20-
14130, 20-141131, 20-14132, 2014133
and 20-14134, were issued in Columba’s
name; and that later on, Original
Certificates of Titles covering the estate
of Evaristo Cuyos were issued in favor of
Columba; that some of these parcels of
land were subsequently transferred to the
names of spouses Renato C. Benatiro and
Rosie M. Benatiro, son and daughter-in-
law, respectively, of petitioners
Gorgonio and Columba, for which
transfer certificates of title were
subsequently issued; that they
subsequently discovered the existence of
the assailed CFI Order dated December
16, 1976 and the Deed of Absolute Sale
dated May 25, 1979.
Respondents filed a complaint against
petitioner Gorgonio Benatiro before the
Commission on the Settlement of Land
Problems (COSLAP) of the Department
of Justice, which on June 13, 2000
dismissed the case for lack of
jurisdiction.14
Salud Cuyos brought the matter for
conciliation and mediation at
the barangay level, but was
unsuccessful.15
ISSUE:
WHETHER OR NOT The publication
of the settlement constitute
constructive notice to the heirs
RULING:
no.
The procedure outlined in Section 1 of
Rule 74 is an ex parte proceeding. The
rule plainly states, however, that
persons who do not participate or had
no notice of an extrajudicial settlement
will not be bound thereby. It
contemplates a notice that has been
sent out or issued before any deed of
settlement and/or partition is agreed
upon (i.e., a notice calling all interested
parties to participate in the said deed
of extrajudicial settlement and
partition), and not after such an
agreement has already been executed
as what happened in the instant case
with the publication of the first deed of
extrajudicial settlement among heirs.
The publication of the settlement does
not constitute constructive notice to the
heirs who had no knowledge or did not
take part in it because the same was
notice after the fact of execution. The
requirement of publication is geared for
the protection of creditors and was never
intended to deprive heirs of their lawful
participation in the decedent's estate. In
this connection, the records of the
present case confirm that respondents
never signed either of the settlement
documents, having discovered their
existence only shortly before the filing of
the present complaint. Following Rule
74, these extrajudicial settlements do not
bind respondents, and the partition made
without their knowledge and consent is
invalid insofar as they are
36
concerned  (Emphasis supplied)
Applying the above-mentioned case by
analogy, what matters is whether the
heirs were indeed notified before the
compromise agreement was arrived at,
which was not established, and not
whether they were notified of the
Commissioner's Report embodying the
alleged agreement afterwards.
We also find nothing in the records that
would show that the heirs were called to
a hearing to validate the Report. The CFI
adopted and approved the Report despite
the absence of the signatures of all the
heirs showing conformity thereto.
The CFI adopted the Report despite the
statement therein that only six out of the
nine heirs attended the conference, thus,
effectively depriving the other heirs of
their chance to be heard. The CFI's
action was tantamount to a violation of
the constitutional guarantee that no
person shall be deprived of property
without due process of law. We find that
the assailed Order dated December 16,
1976, which approved a void
Commissioner's Report, is a void
judgment for lack of due process.
We are not persuaded by petitioners’
contentions that all the parties in the
intestate estate proceedings in the trial
court were duly represented by
respective counsels, namely, Atty.
Lepiten for petitioners-heirs and Atty.
Yray for the oppositors-heirs; that when
the heirs agreed to settle the case
amicably, they manifested such intention
through their lawyers, as stated in the
Order dated January 30, 1973; that an
heir in the settlement of the estate of a
deceased person need not hire his own
lawyer, because his interest in the estate
is represented by the judicial
administrator who retains the services of
a counsel; that a judicial administrator is
the legal representative not only of the
estate but also of the heirs, legatees,
and creditors whose interest he
represents; that when the trial court
issued the assailed Order dated
December 16, 1976 approving the
Commissioner's Report, the parties’
lawyers were duly served said copies of
the Order on December 21, 1976 as
shown by the Certification37 dated
August 7, 2003 of the RTC OIC, Clerk
of Court; that notices to lawyers should
be considered notices to the clients,
since, if a party is represented by
counsel, service of notices of orders and
pleadings shall be made upon the lawyer;
that upon receipt of such order by
counsels, any one of the respondents
could have taken the appropriate remedy
such as a motion for reconsideration, a
motion for new trial or a petition for
relief under Rule 38 at the proper time,
but they failed to do so without giving
any cogent reason for such failure.
While the trial court's order approving
the Commissioner’s Report was received
by Attys. Yray and Lepiten, they were
the lawyers of Gloria and Francisco,
respectively, but not the lawyers of the
other heirs. As can be seen from the
pleadings filed before the probate court,
Atty. Lepiten was Gloria’s counsel when
she filed her Petition for letters of
administration, while Atty. Yray was
Francisco’s lawyer when he filed his
opposition to the petition for letters of
administration and his Motion to Order
administrarix Gloria to render an
accounting and for the partition of the
estate. Thus, the other heirs who were
not represented by counsel were not
given any notice of the judgment
approving the compromise. It was only
sometime in February 1998 that
respondents learned that the tax
declarations covering the parcels of land,
which were all in the name of their late
mother Agatona Arrogante, were
canceled; and new Tax Declarations
were issued in Columba’s name, and
Original Certificates of Titles were
subsequently issued in favor of Columba.
Thus, they could not have taken an
appeal or other remedies.
Considering that the assailed Order is a
void judgment for lack of due process of
law, it is no judgment at all. It cannot be
the source of any right or of any
obligation.38
In Nazareno v. Court of Appeals,39 we
stated the consequences of a void
judgment, thus:
A void judgment never acquires
finality. Hence, while admittedly, the
petitioner in the case at bar failed to
appeal timely the aforementioned
decision of the Municipal Trial Court of
Naic, Cavite, it cannot be deemed to
have become final and executory. In
contemplation of law, that void decision
is deemed non-existent. Thus, there was
no effective or operative judgment to
appeal from. In Metropolitan
Waterworks & Sewerage System vs.
Sison, this Court held that:
x x x [A] void judgment is not entitled to
the respect accorded to a valid judgment,
but may be entirely disregarded or
declared inoperative by any tribunal in
which effect is sought to be given to it. It
is attended by none of the consequences
of a valid adjudication. It has no legal or
binding effect or efficacy for any
purpose or at any place. It cannot affect,
impair or create rights. It is not entitled
to enforcement and is, ordinarily, no
protection to those who seek to enforce.
All proceedings founded on the void
judgment are themselves regarded as
invalid. In other words, a void judgment
is regarded as a nullity, and the situation
is the same as it would be if there were
no judgment. It, accordingly, leaves the
parties litigants in the same position they
were in before the trial.
Thus, a void judgment is no judgment at
all. It cannot be the source of any right
nor of any obligation. All acts performed
pursuant to it and all claims emanating
from it have no legal effect. Hence, it can
never become final and any writ of
execution based on it is void: "x x x it
may be said to be a lawless thing which
can be treated as an outlaw and slain at
sight, or ignored wherever and whenever
it exhibits its head."40 (Emphasis
supplied)
The CFI's order being null and void, it
may be assailed anytime, collaterally or
in a direct action or by resisting such
judgment or final order in any action or
proceeding whenever it is invoked,
unless barred by laches.41 Consequently,
the compromise agreement and the Order
approving it must be declared null and
void and set aside.
We find no merit in petitioners' claim
that respondents are barred from
assailing the judgment after the lapse of
24 years from its finality on ground of
laches and estoppel.
Section 3, Rule 47 of the Rules of Court
provides that an action for annulment of
judgment based on extrinsic fraud must
be filed within four years from its
discovery and, if based on lack of
jurisdiction, before it is barred by laches
or estoppel.

The principle of laches or "stale

demands" ordains that the failure or
neglect, for an unreasonable and
unexplained length of time, to do that
which by exercising due diligence could
or should have been done earlier, or the
negligence or omission to assert a right
within a reasonable time, warrants a
presumption that the party entitled to
assert it either has abandoned it or
declined to assert it.42