[PAPINIANUS libro uicensimo nono quaestionum. ] §49.15.10.prPater instituto impuberi filio substituerat et ab hostibus captus ibi decessit: postea defuncto impubere legitimum admitti quibusdam uidebatur neque tabulas secundas in eius persona locum habere, qui uiuo patre sui iuris effectus fuisset.
[PAPINIANUS, from the Twenty-Ninth Book of Questions.]\n\nA father had substituted a pupil for his impubertal son whom he had instituted as heir, and, having been captured by the enemy, died there. Afterwards, upon the death of the impubertal son, it seemed to some that the intestate heir should be admitted, and that the second tablets (pupillary substitution) had no place in the case of one who had become sui iuris during the father's lifetime.
uerum huic sententiae refragatur iuris ratio, quoniam, si pater, qui non rediit, iam tunc decessisse intellegitur, ex quo captus est, substitutio suas uires necessario tenet. §49.15.10.1Si mortuo patre capiatur impubes institutus uel exheredatus, in promptu est dicere legem Corneliam de tabulis secundis nihil locutam eius dumtaxat personam demonstrasse, qui testamenti factionem habuisset.
However, the reasoning of the law opposes this opinion, since, if the father who did not return is understood to have died at the very moment he was captured, the substitution necessarily retains its force.\n\nIf, after the death of the father, the impubertal son who was instituted or disinherited should be captured, it is easy to say that the Lex Cornelia, having said nothing about the second tablets, indicated only the person of one who had the capacity to make a will.
plane captiui etiam impuberis legitimam hereditatem per legem Corneliam deferri, quoniam uerum est ne impuberem quidem factionem testamenti habuisse: et ideo non esse alienum praetorem subsequi non minus patris quam legis uoluntatem et utiles actiones in hereditatem substituto dare.
Clearly, the intestate succession of even a captive impubertal child is devolved through the Lex Cornelia, since it is true that not even the impubertal child had the capacity to make a will; and therefore it is not foreign to the purpose that the praetor should follow the will of the father no less than that of the law, and grant beneficial actions regarding the inheritance to the substitute.