These are seven cases in which petitioner sued to recover stock assessments from shareholders of the Banco Kentucky Co. They were started in 1936 in the Eastern District of Kentucky and were stayed by agreement while the principal case upon which these depended, Anderson v. Abbott, 321 U.S. 349, 64 S.Ct. 531, 88 L.Ed. 793, 151 A.L.R. 1146, wended its way through the courts. In the latter case we sustained the liability of the shareholders of Banco for the stock assessment. That was in 1944. During the time Anderson v. Abbott was being litigated, the shareholders involved in the present litigation died and respondents became executors of their estates. Through no lack of diligence, petitioner failed to learn of these facts until more than two years later. Upon learning of them he promptly moved to revive the actions against the representatives of the decedents. The District Court, following Anderson v. Brady, D.C., 1 F.R.D. 589, denied the motions for revivor and granted motions of the executors to dismiss. The Circuit Court of Appeals affirmed by a divided vote. Anderson v. Yungkau, 6 Cir., 153 F.2d 685. The case is here on a petition for a writ of certiorari which we granted because the case presented an important problem in the construction of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
The case involves a reconciliation of Rule 25(a) and Rule 6(b). So far as material here, Rule 25(a) provides:
'If a party dies and the claim is not thereby extinguished, the court within 2 years after the death may order substitution of the proper parties. If substitution is not so made, the action shall be dismissed as to the deceased party.'
'When by these rules or by a notice given thereunder or by order of court an act is required or allowed o be done at or within a specified time, the court for cause shown may, at any time in its discretion * * * (2) upon motion permit the act to be done after the expiration of the specified period where the failure to act was the result of excusable neglect; but it may not enlarge the period for taking any action under Rule 59, except as stated in subdivision (c) thereof, or the period for taking an appeal as provided by law.'
It is said that since by Rule 25(a) substitution may be made within two years after the death of a party, substitution is, within the meaning of Rule 6(b), an act 'allowed' to be done 'within a specified time' which the court may on a showing of 'excusable neglect' permit to be done after the two year period. That argument is reinforced by reliance on the provision in Rule 6(b) which grants but two exceptions to the power of enlargement of time. Since Rule 25(a) is not included in the exceptions, it is argued that the time allowed by that rule may be enlarged under Rule 6(b). And it is pointed out that the facts of the present cases establish that the failure of the receiver to act within the two year period was the result of 'excusable neglect', thus giving the District Court discretion to allow the substitution under Rule 6(b).
We agree, however, with the Circuit Court of Appeals. Rule 25(a) is based in part on 42 Stat. 352, 28 U.S.C.A. § 778, which limited the power of substitution to two years from the death of a party. And even within that two year period substitution could not be made unless the executor or administrator was served 'Before final settlement and distribution of the estate.' That statute, like other statutes of limitations, was a statute of repose. It was designed to keep short the time within which actions might be revived so that the closing and distribution of estates might not be interminably delayed. That policy is reflected in Rule 25(a). Even within the two year period substitution is not a matter of right; the court 'may' order substitution but it is under no duty to do so. Under the Rule, as under the statute, the settlement and distribution of the estate might be so far advanced as to warrant a denial of the motion for substitution within the two year period. In contrast to the discretion of the court to order substitution within the two year period is the provisions of Rule 25(a) that if substitution is not made within that time the action 'Shall be dismissed' as to the deceased. The word 'shall' is ordinarily 'The language of command'. Escoe v. Zerbst, 295 U.S. 490, 493, 55 S.Ct. 818, 819, 820, 79 L.Ed. 1566. And when the same Rule uses both 'may' and 'shall', the normal inference is that each is used in its usual sense-the one act being permissive, the other mandatory. See United States ex rel. Siegel v. Thoman, 156 U.S. 353, 360, 15 S.Ct. 378, 380, 39 L.Ed. 450.